A wrongful death case is one of the most difficult and personal types of cases that can be filed in Nebraska. Pursuing a wrongful death lawsuit is about much more than just seeking financial compensation – it is a way to honor the deceased individual and hold someone accountable for the preventable loss of life. To prove a wrongful death case and collect compensation in Nebraska, the following elements must be established.
Negligence, or a Breach of the Duty of Care
Most civil lawsuits are based on the plaintiff’s legal doctrine of negligence. The definition of negligence is the failure to exercise a reasonable level of care. Any act or omission that violates, breaches or falls short of the accepted level of care constitutes negligence. To prove a wrongful death case, the plaintiff (filing party) is required to show that the defendant (the at-fault party) owed the decedent (deceased person) a duty of care.
A duty of care is a legal obligation or requirement to use a certain amount of care. Duties of care are determined based on what a reasonable and prudent person would do in the same or similar circumstances. After a fatal motor vehicle accident, for example, a defendant’s duty of care will be defined by what a reasonable driver would have done in the same situation. If it is determined that the defendant breached the duty of care, he or she was negligent.
The Death of Another Person
The nature of a wrongful death claim requires the victim to have perished from his or her injury or illness. It is not possible to bring a wrongful death lawsuit if the victim is still alive, even if he or she is in a comatose state or otherwise incapacitated. For these situations, a personal injury lawsuit is more appropriate. In many cases, one of the victim’s family members can file this type of claim on the victim’s behalf.
If the injured party passes away while the lawsuit is pending, it can be turned into a wrongful death claim. The party that is legally permitted to file a wrongful death claim in Nebraska is the personal representative of the decedent’s estate. If the decedent did not name an executor or administrator of his or her estate in a will, the courts can assign a personal representative to file the lawsuit.
There must be evidence of a direct link between the defendant’s negligence and the cause of the decedent’s death. In other words, the death would not have happened but for the defendant’s neglect, wrongful act or default (omission). While it is not necessary to prove that the defendant intended to cause the victim’s death, a breach of the duty of care must be the proximate or actual cause of the fatal injury or illness. Foreseeability often plays a role in proving causation; if a serious or fatal injury was a foreseeable outcome of the defendant’s actions, he or she can be held liable.
The fourth and final element that is required is the presence of actual damages suffered by the plaintiff. The decedent or his or her surviving loved ones must have experienced real, specific damages because of the defendant’s negligence. Damages can include medical costs, funeral and burial expenses, lost wages and inheritance, lost household services, lost love and companionship, grief and sorrow, emotional distress, and mental anguish.
Get Help Proving a Wrongful Death Case in Nebraska
The burden of proof in a wrongful death case is to establish these four elements as more likely to be true than not true. This is also known as a preponderance of the evidence. An Omaha wrongful death lawyer from Knowles Law Firm can help you establish the required elements by preserving and collecting evidence to support your case. For more information about how our attorneys can assist you with a wrongful death claim, contact us to request a free case consultation.