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Wayne Parsons
Wayne Parsons
Attorney • (808) 845-2211

Death in the Family – What Can We Do About It?

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Your family is shocked by the sudden death of a loved one. The cause of death involves an automobile, truck, bus or other motor vehicle. As you attempt to recover emotionally from the tragedy, precious time is passing that may allow the the party responsible to escape from responsibility for what they did to your family. The evidence is slipping away and sometimes the guilty party is actively trying to cover up their sins by destroying the evidence that your lawyer needs to prove the case. Evidence at the scene of a automobile accident and witnesses quickly fade away and may be lost forever.

The law provides you with rights when someone negligently or intentionally causes a death. Drivers and sometimes their employers are held responsible for what they do or fail to do when their acts or omissions cause a death. Let’s look at the history of this law: the law of “wrongful death”.

In England as our modern law developed in what we refer to as the “common law”, the death of a person was not considered an injury to his or her relatives, and so the family could not bring a negligence lawsuit against the person or corporation responsible for the death. So if a person was injured through someone’s negligence, the wrongdoer (called the “tortfeasor” by lawyers, would be held responsible (“liable”) for causing injury. But if the person was killed, there would be no liability and nothing could be done by the family to correct for the wrong. Consequently, it would be better financially for a driver or motor vehicle operator to kill (rather than maiming) a victim whenever possible. That was not only an unfair result, but an absurd possiblity, nor was it good law to create such an incentive for death. Changes had to be made and they were.

The Fatal Accidents Act 1846 (England) is usually referred to as Lord Campbell’s Act after its creator. This statute provided that compensation may be obtained by the dependants of a victim of homicide and also provided that the family of a negligently or wrongfully killed person could bring a lawsuit against the responsible party. Similar legislation has since been brought into force throughout the English-speaking world and Hawaii has a wrongful death statute that covers civil actions in this situation.

In Hawaii, the family of a person who has died due to the negligence of someone operating or driving an automoblie or bus or truck, can get jsutice and compensation for the wrong through a lawsuit in our circuit courts. Generally, the family has two years from the date of the death to file suit. If the case involves a federal driver or vehicle or happens on federal land in Hawaii, then the time to file is governed by the Federal Tort Claims Act (FTCA) and a shorter period is allowed. Also in that case the claim is first filed as an FTCA claim with the United States government and then later the lawsuit will be filede in federal – not State – court.

Be aware that there are complex laws that may shorten or lengthen that time and place for filing. For instance if the case involves the County or the State of Hawaii, the claim may be forever barred unless written notice of the claim is made to the governmental entity within as little as six (6) months of the death. Be very careful to have a legal analysis of these questions done as quickly as possible. Only by having a lawyer who handles wrongful death cases examine the facts of the case as soon as possible can you be sure that you will be protected. So not only may you lose key evidence by delaying seeing an attorney, but the claim may be lost completely.

The parties who can sue are the spouse, the children at home or in the case of the death of a child, the parents and perhaps the siblings. Hawaii law has specific criteria for determining who can sue.

In addition, what the family can sue for is important. Since there has been a death, the suit for the deceased is through the “Estate” of the deceased and a court case must be filed to open an estate and a person must be appointed to represent the Estate. that person is usually the spouse or parent depending upon who the deceased person is – child, spouse etc.

The Estate can collect at trial for lost income, medical expenses and general damages for pain and suffering, that the deceased experienced. In a case of instant death the amount of the “pain and suffering” for the deceased is low. In cases where the deceased lived through horrible pain the amount will be high.

The family members also have their own claims and those relate to the type of relationship they had with the deceased. For instance large amounts have been recovered by a mother who witnessed the violent death of her child in a car crash. On the other hand, and surprisingly, recoveries by the parents of a baby who dies at childbirth or shortly thereafter in a motor vehicle accident are frequently low. The reason for that is because the parents have not established a deep relationship with the child. In addition the child has a limited or no claim for future loss of income because it cannot be proven with sufficient certainty under the law..

In the end every case is different and an anlysis of the people involved by a competent lawyer is necessary to advise as to your family’s right when a tragedy strikes.