By its very nature, a wrongful death cause of action is a derivative of the decedent’s right to maintain his or her own action and recover damages had death not occurred. Therefore, if the decedent had no right to an action at the time of death, the decedent’s survivors have no right to a wrongful death action. For example, if the decedent’s personal injury action had expired at the time of death, the wrongful death action based on the same tortious conduct is also barred. Additionally, a prior action by the decedent, may extinguish the wrongful death claim when there is a sole tortfeasor. However, if joint tortfeasors cause injury to a person, then the personal representative of the decedent may still sustain an action against the remaining tortfeasors.

When the wrongful death action does survive and proceeds to trial, evidence disputing damages may be presented by the defense to reduce or bar damages against a survivor. For instance, a defendant may present evidence that a surviving spouse remarried subsequent to the decedent’s death, or evidence of domestic discord to rebut a close marital relationship between the decedent and the surviving spouse. In Florida, evidence that a plaintiff left his wife and children to live with another woman, and had not provided them with any contact information or means to contact him in an emergency, was admissible in the plaintiff’s wrongful death action arising from the death of the plaintiff’s son.

The complexities of a wrongful death action should be handled by an experienced wrongful death attorney. Do not trust your case to anyone but a qualified attorney. Call Sharmin & Sharmin P.A. 1-800-74-TRIAL.