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  • Writer's pictureLeslie A. Farber

What is a Wrongful Death Claim?

Updated: Jul 3, 2019

wrongful death

With gun violence dominating the national conversation, wrongful death lawsuits are increasingly making headlines. Last month, families in Pennsylvania and Tennessee filed wrongful death lawsuits in connection with the shooting deaths of loved ones.

James J.R. Gustafson, 13, lost his life two years ago at his home in Pennsylvania when a friend accidentally fired a gun he believed was not loaded. Gustafson’s parents are suing the manufacturer and seller of the gun that killed their son. In Tennessee, the family of Nancy Lewellyn has filed a $20 million wrongful death lawsuit against Shelby County as well as the sheriff and deputies involved in fatally shooting of Lewellyn.

Wrongful death claims involve not just shootings but all types of fatal events, from car accidents to complicated medical malpractice or product liability cases. When someone dies due to the negligent or reckless behavior of another person or entity, such as the gun manufacturer in the Lewellyn case, the survivors may be able to file a wrongful death lawsuit against that party. This type of civil court action allows them to seek financial compensation for their loved one’s loss and determines the amount of compensatory damages survivors are entitled to receive.

Individuals, companies and some governmental agencies can be legally at fault for acting negligently. However, in certain situations government agencies and employees and even family members may be immune from wrongful death lawsuits. For example, federal laws provide immunity from wrongful death claims to defendants in railroad collisions and some product liability cases involving medical devices. In 2013, the U.S. Supreme Court ruled in Mutual Pharmaceutical Co., Inc. v. Bartlett that generic drug makers cannot be held liable in a state court wrongful death lawsuit based on the alleged "unreasonably dangerous" nature of a drug, since the FDA approved the original drug and its labeling.

Every state in this U.S. has some kind of wrongful death legislation in place that sets parameters ranging from who can file a claim to the statute of limitations for bringing a lawsuit. In New Jersey, a wrongful death claim can be brought in instances where the victim could have brought a personal injury lawsuit if they had not died. The claim must be brought in the name of a personal representative of the victim’s eligible survivors, which typically is the executor of the decedent's estate. If the victim has no will, the probate court will appoint an administrator.

The lawsuit is brought on behalf of dependents of the deceased victim or survivors who would be entitled to inherit from the victim. Surviving spouses and children can file in all states; in New Jersey, the victim’s surviving parents can seek a recovery if there is no spouse or children. If the victim’s parents are deceased, surviving brothers, sisters, nieces or nephews may file a claim.

A wrongful death lawsuit requires proof of negligence or carelessness. Those eligible to recover damages under the state’s Wrongful Death Act also must show that they have suffered actual financial losses. In New Jersey, no recovery can be sought for the emotional distress, mental anguish and grief of surviving family members.

New Jersey law allows damages for:

  • Ÿ Loss of income the victim would have actually earned and contributed to his or her survivors;

  • Ÿ the reasonable economic value of the loss of services, assistance, guidance and training that the victim would have provided;

  • Ÿ and reasonable funeral and medical expenses.

Punitive damages are not available in a wrongful death lawsuit in our state, and survivors typically must file a claim within two years after the date of the victim’s death.

If you believe that your loved one's death was caused by the negligence of another, it is important to understand your rights in order to determine if you should pursue a claim. We are here to answer your questions and provide expert legal advice. Please contact us at 973-509-8500 x213 or

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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