WRONGFUL DEATH LAWYER IN OVERLAND PARK, KANSAS
People make mistakes. Ordinarily those mistakes are discovered and corrected, the person who made the mistake learns from their mistake and is wiser for the entire experience. This is how the world is supposed to work. However, sometimes people don't learn from their mistakes or they still continue with a course of conduct even knowing their conduct is risky. Whether it be texting and driving or failing to do routine maintenance on a semi-truck, continuing risky behaviors eventually causes injuries or death.
Sometimes the injury or wrongful death befalls the person conducting the risky behavior but more often the injury or wrongful death is shouldered by an innocent person. When an innocent person is killed due to the willful risky behavior of another, it generally sets off a chain reaction and deliberate obstruction of the truth. Unfortunately, the type of person responsible for conducting willful risky behavior that results in the need for a wrongful death lawyer is generally the type of person who is willing to take a big step back when that risky behavior injures or kills another. The type of person who is willing to put others at risk is very likely to try and hide or diminish their role when their activity causes death or injury.
Unfortunately, because there are members of our society that don't play by the rules and are willing to put innocent people in harm's way, wrongful death lawyers ultimately become the beacon of truth and hope for the family left behind after a tragedy. The wrongful death lawyers at Roth Davies, LLC seek out the truth when a loved one is killed.
Big insurance companies and the wrongdoers they protect spend millions of dollars conditioning the public into believing that "accidents happen" and that when those accidents happen, they will take care of the family members left in the wake of a tragedy. The simple fact is most deaths do not occur on the first time a person or company makes a mistake or engages in risky conduct. Deaths occur when companies and people repeatedly participate in risky conduct and it eventually kills someone.
When a wrongful death occurs, big insurance companies with big pockets try to hide behind the idea that, "accidents happen" and try to downplay the wrongdoers involvement. Only when experienced wrongful death lawyers investigate and prosecute the case are the repeated unsafe and risky behaviors of these wrongdoers discovered and brought to light. The only way to make the world a safer is to hold the individuals accountable for subjecting innocent people to risky and unsafe conduct.
The wrongful death lawyers at Roth Davies, LLC hold the people and companies accountable for their unsafe actions; we leave no stone unturned in the pursuit of justice for the family left behind. From the outset of every case, we meet with the family and help at all stages of the wrongful death claim and lawsuit. When it comes down to it, nothing can bring back the lost loved one, but by holding the wrongdoers accountable, we hope to assist their family going forward as well as change the conduct of the individuals and companies so that another family doesn't have to endure a similar loss.
How do wrongful death cases work in Kansas?
Individuals come to our office at the worst time of their lives. Whether it be due to medical malpractice, a semi-truck accident or whatever the cause may be, a loved one has just passed away due to someone else’s negligent actions. Naturally, the family of the decedent wants answers when a tragedy occurs. They want answers as to why an accident occurred, how it occurred and how it can be prevented from occurring to another unsuspecting innocent family. Part of every good wrongful death lawyer's job is to ensure that the family gets the answers to these questions in addition to financially stability. When pursuing answers for the family the wrongful death claim begins and there are several stages to any successful claim.
1. Determining the Heirs:
The first step in a claim is to determine who the appropriate heir to assert the claim is. In Kansas, this is determined by K.S.A. § 60-1902. To determine the appropriate heirs to a claim, things like whether the decedent was married and whether they had children will be considered among other considerations. It will be up to the heirs to engage a wrongful death lawyer. Many times questions of attorney fees will be a concern at this stage. Heirs may not have the ability to pay a lawyer but are still wanting to pursue a claim. Nearly all wrongful death lawyers accept cases on a contingency basis. In other words, heirs never pay an attorney unless the attorney wins their case. After the appropriate party to pursue the claim is determined, next is to start an investigation to determine who all could be responsible for the cause of the wrongful death.
2. Investigation of the Claim:
Investigation of a claim is one of the most important parts of a wrongful death lawyer's job. Often a lawyer may hire other professionals like a private investigator, accident reconstructionist, medical expert or other expert relevant to the claim during the investigation stage of a claim. The investigation is largely going to center around the type of claim. In a medical malpractice scenario, there could be many health care providers and the investigation will help determine who all was involved and who was at fault. In a construction site accident scenario, there could be numerous contractors and subcontractors and the investigation will determine at the involvement of each. For a truck wreck scenario, the trucking company, the driver, and various levels of leases will need to be investigated for the claim. The investigation to find the responsible parties should be done as soon as possible. Individuals that are responsible for the death of another my try to destroy evidence or hide facts relevant to pursuing the claim. The quicker a party retains a lawyer to start uncovering the cause of the death the better for the claim and the better for obtaining answers as to why the death occurred.
3. Determining Damages:
Damages are another way of saying, "What can the wrongdoer in a claim do to make the family whole again?" In reality, no one can bring back a lost loved one. No one can take the place of a father reading a bedtime story to their kids; No one can kiss a child's skinned knee after they have fallen like a mother can. No one can make a family whole again. When someone is killed due to another’s reckless actions a lawyer is left with limited ability to really make a family whole again. All a lawyer can really do is seek monetary compensation from the wrongdoer and make it so costly that the wrongdoer thinks long and hard about ever engaging in the type of reckless conduct that fractured a family and cost someone their life. Each state has a specific law that lays out the damages allowed when pursuing a wrongful death claim. In Kansas, damages are determined by K.S.A. § 60-1904.
What is the Law on Wrongful Death in Kansas?
The law varies by state and even neighboring states can have vastly different laws when it comes to wrongful death claims. The advantages and disadvantages of where a case is filed can be numerous and have a dramatic effect on the outcome for the victims. Kansas’ wrongful death statute can be found at K.S.A. 60-1901. In Kansas, wrongful death is understood as not a separate cause of action. Instead, it is the claim that the person who died could have brought for damage to them had they lived. The necessary elements are: 1) death of a person and 2) caused by “wrongful act or omission of another.” The following discusses some of the details of bringing a claim under this statute.
Who Can Bring a wrongful death lawsuit in Kansas?
Generally, lawsuits are brought by the injured party and are allowed to continue if that party dies. However, wrongful death claims are different. K.S.A. § 60-1902 will only allow an “heir at law” of the deceased to initiate a wrongful death lawsuit. This is not the estate of the deceased but their relative. An heir at law is a spouse or blood relative of the deceased individual. “The estate” of the deceased refers to the estate’s executor. The executor is in charge of dealing with the deceased individual’s affairs, debts, and other business. This distinction can result is some odd findings, as is what happened in the case Lewis v. BHS College Meadows. In Lewis, a man died after he received negligent medical treatment which prompted his daughter to bring both a claim for medical malpractice and wrongful death. The court held that the she could only bring the wrongful death claim (as she was heir at law to the deceased) but she couldn’t bring the medical malpractice claim as only the decedent’s estate can maintain an action that an individual could have originally brought while living.
Any heir who has sustained a loss by reason of the death may bring the wrongful death suit. For these purposes, the meaning of “heir” is the same as it would be under property and estate law: one who would receive property or the estate from a person at their death because of their relationship. This can include the surviving spouse, parents, grandparents, children, and other relatives who would be the decedent’s heir at his death. However, this does not include the administrator of the decedent’s estate. Therefore, if a parent’s parental rights have been severed for some reason, this also ends the right of her former children to bring a wrongful death action upon her death.
The “loss” requirement is usually not an issue. However, where children had no “meaningful relationship” with their estranged birth mother’s child and there was little to no evidence of relationship or grief, the court suggested that this might not be sufficient to fulfill the “loss” requirement
Who can receive compensation?
There is an additional difficulty for plaintiffs in a wrongful death cases; how to divide any compensation among the heirs. K.S.A. 60-1905, requires the awarded damages be apportioned to the heirs at law according to “the loss sustained by each of the heirs”. This is true even if an heir didn’t take part in the litigation (meaning they didn’t help retain an attorney, gather evidence, testify, etc). However, this can be addressed by having that heir sign a waiver of their portion of the recovery or very simply, have all heirs take part in the lawsuit. The heirs that are most affected by the loss of the decedent will generally receive the most compensation. For example, a spouse will generally receive more compensation than a cousin.
What causes of death are covered by wrongful death claims?
K.S.A. § 60-191, permits an heir to recover when the decedent’s death was a result of “wrongful acts or omissions” of another. This means, in Kansas, any careless action that causes a death of another, the basis of a wrongful death lawsuit is formed. Intentional harms can also be a basis for a wrongful death lawsuit. For example, under K.S.A. § 60-1901 both a car accident and an intentional shooting that result in a death can constitution wrongful death actions.
A specific type of conduct that can warrant special attention is governmental actions. Usually, under the term sovereign immunity, both the federal and state governments are immune from being sued by persons for monetary damages. However, both the federal government (via the Federal Tort Claims Act, 28 USC § 2671) and Kansas (via the Kansas Tort Claims Act, KSA § 75-6101) have waived a portion of their sovereign immunity in certain situations. Common wrongful death suits against the government includes medical practice by VA doctors and vehicle accidents caused by a state vehicle. However, their sovereign immunity hasn’t been waived completely by either act which means not all wrongful death cases permit an imposition of liability. Examples of this include actions of law enforcement that are covered by qualified immunity and discretionary functions by government officials.
What Damages Are Available In A Kansas Wrongful death claim?
The verdict in a wrongful death action is itemized by the trier of fact to reflect amounts awarded for:
(1) non-pecuniary damages;
(2) expenses for the care of the deceased caused by the injury;
(3) other pecuniary damages, such as lost income.
The elements of damage for which recovery may be awarded include:
(1) mental anguish, suffering or bereavement;
(2) loss of society, companionship, comfort, or protection;
(3) loss of marital care, attention, advice or counsel;
(4) loss of filial care or attention;
(5) loss of parental care, training, guidance, or education; and
(6) reasonable funeral expenses.
Punitive damages are not recoverable in wrongful death actions. Punitive damages are recoverable, however, as part of a survival action. Along with the wrongful death cause of action, the estate of a decedent can bring a survival action for decedent’s claimed damages for both economic and non-economic, arising out of defendant’s negligence. It is this survival action that serves as the vehicle for a punitive damages claim.
What Time Limitations Are There On Kansas Wrongful Death Claims?
The statute of limitations for wrongful death actions is two years from the date of death. Although this time may be shortened, it will not be extended. Because the wrongful death action is based on the rights of the decedent, if the statute of limitations has run out on the decedent’s original cause of action, an heir cannot bring a wrongful death claim after their death. For example, where a man had a personal injury action against a company, did not bring it, and subsequently died as the result of the personal injury; his wife could not bring a wrongful death claim because the statute of limitations on his personal injury claim had run out by the time she filed the wrongful death claim.
In medical malpractice, a patient’s survival for more than four years after the alleged malpractice destroys any wrongful death claim heirs might have on the patient’s death. This is even though the patient’s death is highly likely to have been caused by malpractice.
Finally, only one action can be brought against any one defendant for the death of a particular person. Any heir who is not a part of the original action can join the action (in legal terms, “intervene”).
How do wrongful death cases work in Missouri?
1. Determining the Heirs:
The first step in a wrongful death claim is to determine who the appropriate heir to assert the claim is. It will be up to the heirs to hire a wrongful death lawyer. Many times questions of attorney fees will be a concern at this stage. Heirs may not have the ability to pay a lawyer but are still wanting to pursue a claim. Nearly all wrongful death lawyers accept cases on a contingency basis. In other words, heirs never pay an attorney unless the attorney wins their case. After the appropriate party to pursue the claim is determined, next is to start an investigation to determine who all could be responsible for the cause of the wrongful death.
2. Investigation of the Claim:
Investigation of a claim is one of the most important parts of a wrongful death lawyer's job. Often a lawyer may hire other professionals like a private investigator, accident reconstructionist, medical expert or other expert relevant to the claim during the investigation stage of a claim. The investigation is largely going to center around the type of accident. For a truck wreck scenario, the trucking company, the driver, and various levels of leases will need to be investigated for the claim. The investigation to find the responsible parties should be done as soon as possible. Individuals that are responsible for the death of another my try to destroy evidence or hide facts relevant to pursuing the claim.
3. Determining Damages:
Damages are just another way of saying, what types of "What can the wrongdoer in a claim do to make the family whole again?" In reality, no one can bring back a lost loved one. No one can take the place of a father reading a bedtime story to their kids; No one can kiss a child's skinned knee after they have fallen like a mother can. No one can make a family whole again. When someone is killed due to another’s reckless actions a wrongful death lawyer is left with limited ability to really make a family whole again. All a lawyer can really do is seek monetary compensation from the wrongdoer and make it so costly that the wrongdoer thinks long and hard about ever engaging in the type of reckless conduct that fractured a family and cost someone their life.
What is the Law in Missouri on Wrongful Death Claims?
Each state has different laws regarding wrongful death claims. The location of where a case is filed can have many advantages and disadvantage which can then affect the victims’ outcome.
In Missouri, a wrongful death claim is available when “a circumstance results in someone’s death; but if that someone had lived, they would have had a claim for damages.” In general, this is a lawsuit a plaintiff can bring for a tort that resulted in someone’s death.
Who Can Bring The Suit for Missouri Wrongful death claim?
Missouri allows three categories of people to bring a wrongful death action. They are ranked by priority: a plaintiff can only sue under a lesser category if they do not fulfill the higher-ranking category. The first category includes the spouse, parents, children (both natural and adopted), or if the children are deceased, the child’s descendants. If there are no individuals that qualify under the first category, then people in the second category can bring the suit. The second category includes siblings of the deceased or such siblings’ descendants. If there are no individuals from the first two categories that can bring the action, the court can then appoint a “plaintiff ad litem.” A plaintiff ad litem is an individual appointed by the court by the request of individuals who have legal heirs to the deceased. This may be an option because proceeds of a wrongful death claim aren’t subject to probate administration.
If there is more than one possible plaintiff, either plaintiff can bring the suit as long as they can satisfy the court that they have diligently attempted to notify every possible party who could have a cause of action. But any individual who falls under the proper category can intervene (join) in the action at any time.
A personal representative (unless as a plaintiff ad litem selected by the court) is not allowed to file a wrongful death claim. However, they can bring a survival action. A plaintiff can plead both a wrongful death and a survival action but they are required to be pled exclusive of each other in order to prevent recovering for the same damage twice.
What Damages Are Available In A Missouri Wrongful Death Claim?
Missouri statute 537.090 outlines which damages are available for a wrongful death suit. They include:
Pecuniary losses suffered by reason of the death
Funeral expenses
Damages suffered by the deceased between the time of injury and the time of death. (An example would be the pain and suffering the deceased could have maintained if they had lived.)
Reasonable value of:
Consortium,
Services,
Comfort,
Companionship,
Guidance,
Instruction,
Counsel,
Support, and
Training
There are no limits on actual damages unless if the wrongful death action is based upon statutory medical malpractice. If that is the case, the damage cap listed in Missouri statute 538.210 applies. Further, damages for “grief and bereavement by reason of death” aren’t a sufficient basis for recoverable damages.
In determining how much damages are awarded to the plaintiff, the deceased’s health, talents, life expectancy, habits, age, character, and earning capacity will be considered. Missouri law provides for various formulas to calculate damages for certain scenarios.
If the deceased wasn’t employed full time and was at least 50% responsible for caring for disabled persons, minors, or elderly adults: the value of the care the deceased provided is equal to 110% of the state’s average weekly wage. This is a rebuttable presumption. Therefore, this is the default way damages will be calculated unless a party produces evidence that it should be calculated a different way.
If the deceased was less than eighteen years old: damages are calculated based on the income of their parent(s). If both parents are employed, the damages will be based on the average of their incomes. This too is a rebuttable presumption.
Although they are not specifically labeled as punitive damages, the presence of “aggravating circumstances” usually has the same effect. The purpose of awarding this type of damages is to punish the defendant and to deter future conduct. These are only available in wrongful death claims if the deceased would have been entitled to punitive damages had they lived and survived the same tort which they died from.
What time limitations are there on Missouri wrongful death claims?
The statute of limitations for Missouri wrongful death claims is three years. While some actions will toll (delay the start) for plaintiffs who have a disability (i.e. they are a minor or in prison) until that disability is lifted, wrongful death actions do not. Only one claim can be brought against the same defendant for the death of any one individual. Therefore, the same person can’t be sued for the death of the same person more than once.