New Jersey Wrongful Death Lawyers

If a person dies from a careless, wrongful, or otherwise criminal act, the family members who were financially dependent upon the decedent may pursue a wrongful death action. In other words, damages may be sought by:

1. The surviving spouse and children;
2. If there is no surviving spouse or children, then the decedent’s surviving parents; or
3. If there are no surviving spouse, children, or parents, then the victim’s surviving brothers, sisters, nieces or nephews.

However, in order to be eligible to file a wrongful death action, the plaintiff must demonstrate financial dependency on the decedent. This means simply being related to the decedent is not enough.

The monetary damages that a surviving victim may recover in a wrongful death action include the following:

• Loss of financial support. This should equal the amount of income that the decedent would have actually earned and contributed to the survivors. This is typically provided through expert testimony, where the expert, typically an economist, calculates the total income the decedent would have earned and then subtracts taxes and personal maintenance and expense, etc.
• Loss of services. This claim seeks monetary damages for the reasonable economic value of the emotional support, companionship, care and guidance that the decedent provided the survivor. However, it is important to note these damages are based upon the reasonable economic value (e.g. how much would it cost to hire a babysitter), rather than the emotional value of the services provided by the decedent.
• Funeral and medical expenses. These damages are the most straightforward and are established through bills and receipts.

Pursuant to N.J.S.A. 2A:31-4, the court will apportion the total damages owed to each party by taking into account:

In New Jersey, the period of time that one has to file a wrongful death lawsuit is two years from the date of the decedent’s passing. N.J.S.A. 2A:31-3. Failure to file a lawsuit within two years from the date of death will likely lead to an absolute bar from filing. A significant exception does exist for the death of a minor. Where the decedent was a juvenile, the statute of limitations is two years from the date of the decedent’s 18th birthday.

Nevertheless, your attorneys when preparing a wrongful death lawsuit must perform an extensive amount of investigation. Therefore, it is important that you speak with a New Jersey Wrongful Death Lawyer as soon as possible.

While the pain and suffering of surviving family members is indescribable, New Jersey only permits the recovery of actual financial losses. This means that family members cannot be awarded emotional damages in a wrongful death action.

However, in very specific circumstances, it is possible to seek emotional damages in a negligence infliction of emotional distress claim. These types of claims are also known as a Portee claim. In order to sustain such a claim, the victim must be able to prove the following:

1. The death or serious physical injury of another caused by the defendant’s negligence;
2. A marital or intimate, familial relationship between plaintiff and the injured person;
3. Observation of the death or injury at the scene of the accident; and
4. Resulting severe emotional distress.

[Portee v. Jaffee, 84 N.J. 88, 101 (1980).]

The key to a successful Portee claim, however, is actually witnessing the death. Illustrative of this point is the tragic case of Vasilik v. Federbush, where the Appellate Division affirmed the dismissal of a bystander claim where the plaintiff came upon his missing suicidal son, minutes after death and viewed paramedics perform CPR and place a blanket over his son’s body. 327 N.J. Super. 6 (App. Div. 1999).

However, note the case of Ortiz v. John D. Pittenger Builder, Inc., where a matter was allowed to proceed where the plaintiffs escaped a burning home but a child remained within the residence as it became engulfed with flames. 382 N.J. Super. 552, 563 (Law Div. 2004). The court found that relaxation of the third prong was necessary as although the plaintiffs did not view the child’s death, the plaintiffs were sensorially aware of the fire and its fatal injury to the child.

Stated simply a survival action allows the decedent’s estate to recover damages for the pain and suffering suffered by the deceased during the time he was alive after the fatal act occurred. Therefore, if the decedent did not die immediately, the estate is entitled to recover damages for the pain and suffering endured by the deceased.

Unlike a wrongful death lawsuit, which centers around what the survivors lost, a survival action focuses on the damages suffered by the decedent due to his injuries prior to his death.

Damages in survival actions are paid directly to the estate, which is then paid out to the decedent’s beneficiaries through the probate court.

New Jersey allows wrongful death actions to proceed where the death was caused by a “wrongful act, neglect or default.” N.J.S.A. 2A:31-1. Consequently, the defendant does not have to have intended to cause another person’s death, although intentionality will suffice. Instead, a wrongful death action may exist if the decedent’s death was caused by another person’s careless act, or omission.

Common situations resulting in potential wrongful death lawsuits include the following:

• Death from a car accident;
• An accident on another person’s property that resulted in death;
• A crime perpetrated by someone that resulted in a death;
• Construction or workplace accidents resulting in death;
• Medical malpractice resulting in death; or
• A defective product or drug that resulted in death.

While not every wrongful death involves criminality, many do. While you may not expect and arrest to follow in a car accident or workplace accident, you probably expect an arrest to occur following a fatal assault.

While a successful conviction of a defendant is helpful in proving a wrongful death claim, it is not necessary. Therefore, family members should not wait until there is a successful conviction before speaking with a wrongful death lawyer.

If you have lost a family member due to the negligence, wrongful or otherwise criminal act of another and wish to discuss your legal options, you are encouraged to call (609) 924-1115 for a FREE Case Evaluation with a wrongful death attorney.

Alternatively, if you prefer, you may send us an email (Contact Us) or Schedule a Consult where we call you at the time you prefer.