Excerpt From Florida Personal Injury Law and Practice With Wrongful Death Actions, by Thomas Sawaya, Volume 6 (2012-2013)
As an Orlando wrongful death lawyer, I have to carefully consider the definition of wrongful death before filing suit. That definition makes clear which actions might constitute wrongful death, and which do not.
Wrongful death is defined by a published statute in Florida. Specifically, the definition of wrongful death is found in Florida’s Wrongful Death Act, which says that someone can file a lawsuit against the responsible person when any death is caused by any “wrongful act, negligence, default, or breach of contract or warranty.” So the definition of wrongful death includes intentional acts (like hitting someone over the head with a hammer with intent to hit their head), negligent acts (like hitting someone over the head by accident, where other criteria such as having a duty and breaching that duty) and breach of contract and warranty (such as product defects).
The Elements Of A Wrongful Death Case
Whenever your attorney files an action for wrongful death, they must establish that your case satisfies the definition of wrongful death, which includes establishing the following elements, or your case may be dismissed:
- Conduct that amounts to a wrongful act, negligence, default, or breach of contract or warranty;
- The conduct upon which the lawsuit is based must have caused the death of the decedent (so if someone ran someone over with a car, but they died a week later from being hit in the head with a hammer, then the survivors would not have an action against the driver of the car, unless being run over with the car somehow weakened the person and made them more prone to death from the impact of the hammer);
- The conduct that is the basis of the lawsuit would have entitled the person injured to file a lawsuit and recover damages if they had not died.
Why Is The Definition Of Wrongful Death Relevant To Your Potential Case?
The elements above sound really simple and they are, at least to read. But they are very far from simple to interpret. Scores of judicial opinions interpret those three elements based on the facts of particular wrongful death cases. And, if you are not a lawyer, you simply would not believe the incalculable number of arguments that defense attorneys can and do make to try to get cases dismissed based on the plaintiff’s failure to establish the above 3 simple elements. If your attorney does not first allege those three elements in their initial complaint and then establish that you have supporting facts that would prove those elements, then your case can be dismissed by a judge before ever getting to a jury trial, either at the outset of the case (by way of something we call a motion to dismiss) or further into the case (by way of something we call a motion for summary judgment).
If the above definition of wrongful death is clear as mud, and you still do not understand the definition of wrongful death, then you might want to read more about the types of cases that often lead to wrongful death lawsuits.