How Do You Prove That a Death Was Wrongful?
When your loved one dies because of the wrongful act of another person, you have the right to seek compensation for all your losses. It can be a complicated legal process, so it’s essential that you have an experienced and proven attorney to carefully guide you through the process. As a practical matter, unless you can show that the defendant intentionally took the life of your loved one, your lawsuit will be based on a legal theory of negligence.
Proving Negligence in a Wrongful Death Claim
As the person bringing the civil suit for damages (the “plaintiff,” in legal terms), you will have the burden of proof. That means that you must prove all the elements necessary to persuade the court that defendant’s behavior failed to meet the accepted standard. In New Jersey, in any personal injury claim (a wrongful death action is a type of personal injury claim), the burden of proof is “a preponderance of the evidence.” Essentially, that means that you must demonstrate that your version of the facts is more likely than the defendant’s version of the facts. Compare that with the standard of proof in a criminal case—beyond a reasonable doubt—it’s clear that burden of proof is significantly lower in a wrongful death lawsuit.
To successfully argue a wrongful death claim, you must prove three things:
• That the defendant breached the “duty of care”—Typically, the jury identifies what would be considered as reasonable conduct under the circumstances, and will also determine whether the defendant’s actions fell short of that duty of care.
• That the breach caused the accident in which your loved one died—There are two types of causation—actual cause and proximate cause. Actual cause simply says that the accident would not have occurred “but for” the breach of the duty of care. Proximate cause, however, looks at whether or not the accident was reasonably foreseeable as a consequence of the breach of the duty of care.
• That you have suffered actual loss because of the death of your loved one—You must show that you had actual losses—emotional losses are not recoverable in a wrongful death lawsuit in New Jersey. You can recover for lost support, companionship or consortium, the loss of services provided in the home, and for any medical or funeral expenses incurred.
Contact Mallon & Tranger
We offer a free initial consultation to people in New Jersey who have lost a loved one because of the wrongful acts of another person. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.
Wrongful Death—Who Can Be Sued?
When your loved one has died because of the actions of a third party, you have a right to seek compensation for your losses—loss of financial support, loss of companionship or consortium, loss of the value of services provided in the home, and the costs of medical and funeral expenses. To bring such an action, you must be a real party in interest, as defined by New Jersey statute—spouses, children, grandchildren, parents, siblings, nieces and nephews all may potentially qualify. To succeed with such a lawsuit, you must typically show (by a “preponderance of the evidence”) that the at-fault party was not acting reasonably and caused your loved one’s death.
Often, in any type of personal injury claim, it can be difficult to determine who actually caused the accident. In fact, the death may have been caused by the combined actions of a number of parties. For example, your loved one may have been killed in a car accident when another motorist ran a stop sign or red light. However, a post-crash investigation may have shown that one of the vehicles had defective brakes or other mechanical problems. Under New Jersey law, it is entirely permissible to bring a wrongful death action against both parties—the other motorist and the manufacturer of the defective auto part.
There are a number of situations under the law where persons or entities not directly involved in an accident may have liability for a wrongful death:
• Under dram shop and social host liability laws, a person or establishment that serves alcohol may, under limited circumstances, be legally responsible if an intoxicated person causes a fatal accident
• If a motorist causes the death of another while on the job, that person’s employer may have some liability
• The designer, manufacturer or distributor of a defective or faulty product can have legal responsibility for any death caused by its malfunction
Contact the Law Office of Mallon & Tranger
We offer a free initial consultation to people in New Jersey who have suffered loss because of the wrongful death of a family member. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.
Wrongful Death—What Types of Damages Are Available?
The Losses That are Typically Covered in an Accidental Death Lawsuit
If your loved one has died because of the carelessness or negligence of another person, and you qualify under the New Jersey wrongful death statute as a real party in interest, you have a right to seek compensation for a wide range of losses. You’ll need to show that the defendant’s actions failed to meet the accepted standard of care and you’ll have to establish a causal link between the breach of care and the accident that resulted in your loved one’s death. Once you have proven these two elements, you have a right to recover compensation for:
• The loss of any financial support the decedent would have provided you, based on the income he or she would have been expected to receive. As a surviving spouse, that amount will be calculated based on the deceased’s life expectancy. As the surviving child of the deceased, you may seek compensation for the support you would have received until you were reasonably expected to be self-sufficient.
• The value of any and all services the decedent provided at the family home, including housekeeping and cleaning, yard and lawn services, child-rearing and other tasks.
• The loss of consortium and companionship, as well as comfort, care and guidance
• All reasonable medical, funeral and burial costs associated with the accident
Unlike many states, New Jersey does not allow survivors to seek punitive damages or damages for emotional loss or distress in a wrongful death action. You can, however, file a separate lawsuit for negligent infliction of emotional distress.
Contact Mallon & Tranger
We offer a free initial consultation to individuals and families in New Jersey who have lost a loved one because of the careless or negligent conduct of another person. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.
Wrongful Death—Who Can Sue for Damages?
In the first blog in this series, we looked at the concept of wrongful death. We identified it as a right to legal recourse when the wrongful action of another person causes someone’s death. But are there limits to who may sue for the accidental death of another person? Can you seek compensation for the wrongful death of your best friend, or of a business partner?
Who Has the Right to Seek Damages for Wrongful Death?
As with any type of personal injury lawsuit, a person who files a lawsuit seeking compensation (known under the law as the “plaintiff”) must be what the law considers a “real party in interest.” Typically, a wrongful death complaint is filed by a representative of all survivors have suffered some type of loss because of the death. That person is often the executor of the deceased’s estate, but the lawsuit may be brought by anyone who qualifies as a real party in interest.
Typically, whether or not a person qualifies as a real party in interest is set forth in state wrongful death statutes. In New Jersey, a wrongful death action may be brought by any of the following:
• The surviving spouse
• A child or grandchild of the deceased
• A surviving parent of the deceased
• Surviving siblings, nieces and nephews of the decedent
• Individuals who can prove in a court of law that they were “actually dependent” on the deceased
There is a hierarchy of recovery in a wrongful death action. As a general rule, if there is a surviving spouse or children, they are entitled to all the proceeds of a wrongful death action. Parents only have a right to compensation if there is no surviving spouse and no children. Siblings, nieces and nephews can only receive a damage award if there’s no spouse, children or parents surviving the deceased. Even though the lawsuit will typically be filed by one person as representative of all surviving family members, any proceeds are divided equally among those who qualify as real parties in interest, as set forth above.
Contact the Law Office of Mallon & Tranger
We offer a free initial consultation to anyone in New Jersey who has lost a loved one because of the wrongful conduct of another person. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.
Wrongful Death—What Is It?
Can You Recover Workers’ Compensation Benefits?
Few things in life are more devastating than the death of a loved one, particularly when it’s caused by the careless or improper acts of a third person. Under the law as it currently exists, you can bring legal action against a wrongdoer who caused that death. In this series of blogs, we’ll take a closer look at the legal concept of wrongful death—what it is, what you need to prove, who can seek compensation for losses incurred, what types of losses can be recovered, and who is potentially liable.
What Is Wrongful Death?
At the most fundamental level, a wrongful death is one that is determined to be the legal fault of another person. While you can always bring a lawsuit based on an intentional killing, as a practical matter, most wrongful death claims are based on the legal principle of negligence. Under the legal theory of negligence, there’s an accepted standard of care to which all members of society must adhere, when engaged in any type of behavior. For example, when driving a car or manufacturing a product or maintaining real property, all persons are expected to act reasonably so as not to pose an unreasonable risk of harm to others. Driving your car in excess of the speed limit, failing to test a product before putting it on the market, neglecting to fix a broken stairway rail—all these actions can be considered a failure to use the commonly accepted standard of care. The conduct is then considered “wrongful” and if someone dies as a result, the death will be considered a “wrongful death.”
Interestingly, the concept of wrongful death is a relatively new one, only arising in the last couple hundred years. Wrongful death actions are now relatively common, and can be filed in any instance where there’s wrongful conduct that causes the accidental death of another person. However, a person must have “standing to sue” to recover damages for wrongful death.
Contact Mallon & Tranger
We offer a free initial consultation to people in New Jersey who have lost a loved one because of the wrongful act of a third party. To set up an appointment with an experienced and knowledgeable lawyer, contact our office online or call 732-410-6094 (toll free at 877-320-0692) to arrange a meeting. We have offices in Freehold, Toms River and Point Pleasant.
Protecting Yourself When You Have Been a Victim of Sexual Harassment
Although legal redress has long been available for individuals who have been subjected to sexual harassment in the workplace, it’s still a very significant problem in the United States. It can take a couple different forms. Your boss or a supervisor may either offer you work-related benefits in exchange for sexual favors or may threaten you with punishment if you refuse sexual overtures—that’s known as quid pro quo (Latin for “this for that:) sexual harassment. Alternatively, your company may foster or condone an environment where sexual themes, references, pictures and innuendoes are pervasive. This type of sexual harassment is referred to as the creation of a hostile environment based on sex.
Protecting Yourself after You Have Been Subjected to Sexual Harassment
When you are the victim of unwanted sexual advances or a hostile environment based on sex, you can be uncertain about how to best protect yourself and your rights. You may be uncertain whether the actions are sufficient to form the basis of a lawsuit, whether you should report the improper conduct and may even fear retaliation if you say anything. For those reasons, it’s often best to retain an attorney before you notify your employer.
Among the benefits you’ll reap from immediately contacting an experienced sexual harassment law attorney are:
- You’ll be better able to carefully and fully document all instances of harassment
- You’ll know the best time to report the harassment to your employer
- You’ll know what to do if the harassment continues after you’ve notified your employer
- You’ll be better prepared to document any retaliation your employer might take
Contact Mallon & Tranger
We offer a free initial consultation to people in New Jersey who believe they have been subject to quid pro quo sexual harassment. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.
Dealing with Motor Vehicle Accidents Involving Teenagers
According to the Centers for Disease Control, more than 2,300 teenagers were killed in motor vehicle accidents in 2015, a rate of almost seven every day. Though drivers between 19 and 19 account for only about one of every 16 motorists on the nation’s roadways, they are involved in more than one of every 10 accidents.
The Greatest Risk Factors
Though teenagers as a whole are three times more likely to be involved in a fatal motor vehicle accident than older drivers, there are groups within the demographic who are at even greater risk:
- The accident rate for teenagers in their first two years of driving is approximately twice that of teenagers over the age of 18
- Male teenagers have an accident rate of double that for female teenagers
- The addition of passengers increases the accident rate, and the accident rate continues to climb for each additional passenger
According to the CDC, there are a wide range of factors that increase the risk for younger drivers:
- Younger drivers tend to drive at higher rates of speed and are often more guilty of tailgating
- Younger drivers lack the skill and experience to accurately estimate the likelihood of danger. They also tend to engage in poor decision-making when faced with a dangerous situation.
- Teenagers lag behind all other groups in seat belt use—less than 2/3rds reported using a seat belt when riding with another person
- Alcohol and substance abuse are often a factor—the CDC estimated that substance abuse played a role in one in five accidents involving teens
Contact Mallon & Tranger
We offer a free initial consultation to people in New Jersey who have suffered a personal injury related to work. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.
Are Parents Responsible for Motor Vehicle Accidents Caused by Minor Children?
According to the Centers for Disease Control (CDC), younger drivers have the highest accident rate of any demographic. Drivers between the ages of 16 and 20 have been found to be nearly three times more likely to be involved in a motor vehicle accident than older drivers. With that knowledge, do parents who allow their children to drive have any liability for the accidents in which they are involved?
Legal Theories under Which a Parent May Be Liable
As a general rule, any claim against a parent for the wrongful acts of a child must be based on negligence:
- The parent did not act as a reasonable person would
- The failure to act reasonably caused an accident
- As a result of the accident, another person suffered actual loss
There are two specific legal theories under which parents have been found to have liability for the wrongful acts of their children: negligent entrustment and vicarious liability.
To succeed in a claim based on negligent entrustment, you must show that the parent’s decision to allow the child to drive the car was not reasonable. Typically, that would involve knowledge that the child posed an unreasonable risk of injury to others. It may stem from prior acts of carelessness or it may be attributable to the minor’s lack of experience. If the parent knew or had reason to know that the minor child posed the risk, there can be liability.
The legal principle of vicarious liability is rooted in the law of agency. Where there’s a “agent-principal” relationship—one party acting on behalf of the other—the acts of the agent will customarily be attributed to the principal. Accordingly, if a parent sends a minor child on an errand, the parent will likely be considered a principal and the child their agent, leading to potential liability.
Contact Mallon & Tranger
We offer a free initial consultation to people in New Jersey who have suffered a personal injury. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.
Third Party Liability in a Motor Vehicle Accident
Seeking Damages from Someone Other than the At-Fault Driver
In the aftermath of a motor vehicle accident, it’s important to identify all potentially responsible parties. Of course, you’ll want to hold the other driver accountable for any negligence or carelessness that caused you to suffer losses. But there are often other third parties with potential liability.
The Employer of the At-Fault Motorist
Under the legal doctrine of respondeat superior, an employer may have liability for the wrongful acts of an employee, provided the worker was acting within the scope of his or her employment at the time of the careless act. For example, the employer of a truck driver hauling freight will generally have liability for motor vehicle accidents caused by the driver. There are exceptions, though. If the employee is engaged in a personal errand at the time of the accident or is involved in illegal actions unknown to the employer, there is generally no liability.
The Owner of the Vehicle
In New Jersey, as in many states, insurance attaches to the vehicle and not the driver. Accordingly, when you seek compensation from an insurance company, it will be the owner’s insurance company, not the driver’s.
The Designer or Manufacturer of the Vehicle or Any Defective Component
If the accident was caused by the breakdown, malfunction or negligent design of a motor vehicle or component part, you can bring a product liability claim against a third party. Liability for dangerous and defective products applies throughout the chain of distribution, from the manufacturer to the wholesaler to the retailer. You can file a product liability claim for negligent design, negligent manufacturing or negligent marketing of a product.
The Municipality that Maintained the Roadway
It’s also possible to seek compensation from a city, county or other municipality, if you can show there was negligence in maintaining the roadway or traffic signs/signals.
Contact the Law Office of Mallon & Tranger
We offer a free initial consultation to people in New Jersey who have suffered a workplace injury. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.
