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Filing a Wrongful Death Suit in Florida

November 23, 2017

Historically, when a victim of negligence or misconduct died, their lawsuit died with them.  However, the law has developed, and in modern times the surviving family members or personal representative may bring suit against the tortfeasor under the appropriate jurisdiction’s wrongful death act.  Every state has enacted a wrongful death, and Florida’s act is codified at § 768.16, and is cited as the Florida Wrongful Death Act.  The intent of the Act is “to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”  Under the Act, survivors are defined as “the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.”  Florida’s Wrongful Death Act is critical to surviving family members because it states that the wrongdoer “shall be liable for damages as specified in this act notwithstanding the death of the person injured.”  Without this important development in the law, surviving family members would not have an action at common law.

Every jurisdiction is different, and in Florida surviving family members have a limited amount of time to file a wrongful death action.  The circumstances of each case are different, and Bryan W. Crews will gladly evaluate the merits of your case.  This evaluation will include a review of the applicable statute of limitations

The measure of damages in a wrongful death action is different than the measure of damages in other personal injury lawsuits.  In most every jurisdiction, the measure of damages in a wrongful death action is limited to financial loss, the pecuniary interest of the decedent.  Pain and suffering damages are typically not recoverable in a wrongful death action.  In short, measuring damages this way allows surviving family members to recover for loss of support, loss of companionship, medical or funeral expenses by the decedent that has paid them, loss of earnings, etc.  This allows the estate of the victim to be made whole, or, put in the same position that the decedent would have been in had the defendant not caused her death.

Wrongful death actions are adjudicated under the greater weight of the evidence standard, or the preponderance standard.  This is a lower standard than the beyond a reasonable doubt standard employed in criminal cases.  In Florida, the Standard Jury Instructions for wrongful death damages issued by the Florida Supreme Court require a jury to find the defendant liable if the greater weight of the evidence supports the plaintiff’s claim.  For those familiar with O.J. Simpson’s criminal and civil trials, this is why O.J. was not convicted criminally, but found guilty in civil court for wrongful death.

Last week, the parents of Jonathan Astaphan were awarded $45 million dollars in a wrongful death suit stemming from their son’s 2015 death.  Astaphan was killed when a flatbed truck carrying concrete barriers left the construction zone on a highway and backed into oncoming traffic.  According to the “attorney representing the Astaphan family, [] the construction company failed to safely guide its vehicles out of construction areas and into lanes of traffic, causing the fatal crash.”  Astaphan was a promising young medical student hoping to pursue a career in neurology.  Tragically, his life was cut short.  The construction company responsible was reportdely “ordered to pay $35 million in damages; Juan Calero, the driver of the tractor-trailer in the chain-reaction crash, was ordered to pay an additional $10,005,000.”

If you have lost a spouse or family member due to the negligence or misconduct of another, contact Bryan W. Crews, your Orlando personal injury attorney.

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