What Are the Elements of a Wrongful Death Claim?

Posted on May 26th, 2015 in Uncategorized

Elements of a Wrongful Death Claim

Before you file a claim relating to wrongful death, it’s important to make sure you’re aware of the specific elements that make up a wrongful death claim. These elements include:

  • A death resulting from the incident in question
  • Proof that your loved one’s death was caused by the negligence of the defendant
  • Showing that your loved one’s death directly affected you and/or other members of the victim’s family
  • The death leading to financial hardship for surviving dependents/family members

Ultimately, the main priority of a wrongful death action is to provide an avenue of recovery for the persons who were economically dependent on the deceased, so all elements are geared towards this end.

How is “negligence” defined in a wrongful death case?

Most often, wrongful death actions are based upon negligence, the idea that a person failed to exercise reasonable care under the circumstances to prevent harm to the deceased person.

Negligence-based cases typically include:

  • Motor vehicle related accidents: car and truck accidents, motorcycle accidents, auto-pedestrian accidents, auto-bicycle accidents
  • Premises liability: a landowner failing to exercise reasonable care under the circumstances to protect against harm, resulting in injury or death
  • Product liability: a manufacturer or seller placing an unreasonably dangerous and defective product in the marketplace, resulting in injury or death
  • Medical malpractice: claims against physicians, hospitals or nursing homes

Who can bring a wrongful death action in Colorado?

With Colorado wrongful death claims, the spouse of the deceased has the exclusive right to start a wrongful death action within the first year of death, along with allowing the heirs of the deceased to join in the wrongful death action through written election. If there is no spouse, the deceased’s heirs can immediately bring a wrongful death action. Under the Wrongful Death Act, Colorado courts interpret the term “heir” to include only a child or lineal descendant of the deceased. This means that a sibling of the deceased has no standing to bring a wrongful death action.

Additionally, parents of the deceased have the right to bring a wrongful death action if the deceased is an unmarried minor with descendants or unmarried adult without descendants. If the deceased is married, or has any descendants, parents don’t have standing to bring a wrongful death action. The exception here is if the parents are divorced, separated, or living separately, in which case either may file a motion asking the court to fairly apportion the proceeds of the wrongful death action.

When handling wrongful death cases in Colorado, there are a few pitfalls to watch out for. One of the most significant is the one action under Colorado law. This law states that only one action can be brought for the death of any one descendant, which means that if a case is brought into court against the defendant and settled, no additional actions can be brought against any other party for that person’s death.

If you’re wondering whether or not you have the necessary elements to initiate a wrongful death claim, contact one of our experienced wrongful death attorneys. We believe that we are known throughout Colorado as the firm people turn to for advice on wrongful death cases, and we are proud to provide exceptional legal representation at a reasonable cost.

Firm Overview

Gregory R. Giometti & Associates, P.C., is recognized as one of the top civil litigation firms in Colorado. Mr. Giometti and his associates are highly experienced trial attorneys who have conducted dozens of jury trials in both state and federal courts, mainly in Colorado, but also in Idaho, where Mr. Giometti is licensed as well. The focus of the firm’s practice is representation of insurance companies and their insureds in first and third-party claims.

Practice Areas

  • General Insurance Defense
  • Insurance Coverage Disputes – Declaratory Judgment Actions
  • Coverage Investigations – EUOs
  • Insurance Bad Faith Litigation – Statutory Bad Faith Cases
  • Disputed Property Insurance Claims – Hail Damage Claims – Appraisals
  • Motor Vehicle Accident Litigation – UM/UIM Claims
  • Premises Liability Claims
  • Construction Defect Litigation
  • Fire & Explosion Cases
  • Ski Accident Litigation
  • Wrongful Death Actions
  • Expert Witness Services

Contact Us

  • Gregory R. Giometti & Associates P.C.
    50 South Steele Street
    Suite 480
    Denver, CO 80209
  • Telephone: 303-333-1957
    Fax: 303-377-3460