A fatal accident can happen in the blink of an eye, but the effects for surviving family members can last a lifetime. A “wrongful death” is defined as the death of a person caused by the wrongful act of another. When a loved one dies due to another person’s negligence, the surviving family members can file a wrongful death lawsuit. In what follows, our Colorado wrongful death attorneys discuss pursuing justice on behalf of loved ones.
Colorado Wrongful Death Lawsuits
A wrongful death occurs when a loved one dies due to a negligent party’s wrongful act, carelessness, or negligence. Wrongful acts include negligence, such as driving under the influence of alcohol and/or drugs, or intentional torts, such as assault and battery. The following represents a non-exhaustive list of situations that could result in a wrongful death lawsuit in Colorado:
- Intentional Torts: These are actions done intentionally to bring about a specific result, and the act results in wrongful death. A famous example is that of O.J. Simpson, who was sued in civil court for the wrongful deaths of Nicole Brown and Ronald Goldman. These civil suits brought by the victims’ families were separate from the State’s criminal case.
- Medical Malpractice: Medical professionals might make mistakes through a negligent act or omission. There is no shortage of examples that could lead to a wrongful death lawsuit against a medical professional, including:
- A physician misdiagnoses a condition, leading to a delay in care or inappropriate treatment.
- A physician might make a fatal error during a surgical operation.
- A physician might prescribe a medication to which a patient has an allergy or causes a dangerous interaction with another drug.
- A pharmacist may provide the wrong medication or fail to notice a potentially dangerous interaction when filing a prescription.
- Defective Products: A defective produce can occur when someone dies as a result of using consumer products like electronic appliances, industrial machinery, medical devices, and even children’s products. If a product is defective or malfunctions seriously enough to cause death, there may be grounds for a wrongful death claim.
- Car Accident Fatalities: If a victim dies as a result of injuries sustained in a car accident, a wrongful death claim may be brought.
Oftentimes, a death leads to the filing of criminal charges as well as a wrongful death lawsuit. For example, a drunk driver who causes a fatal accident will likely be charged criminally but may also be sued by surviving family members in a wrongful death lawsuit. While the criminal prosecution is intended to punish the wrongdoer, a wrongful death lawsuit is a distinct civil action filed by survivors to seek compensation for their loved one’s death. Unlike criminal charges, the purpose of a wrongful death lawsuit is to compensate the decedent’s close family members.
Filing a Wrongful Death Lawsuit
Following a wrongful death in Colorado, surviving family members may have questions about who is legally entitled to pursue a claim. Colorado law creates two tiers for claimants, one of the first year following the decedent’s death and another for the second year. During the first year following the decedent’s death, the surviving spouse has the exclusive right to file a wrongful death claim. One important exception, however, allows a surviving spouse to file a written election to allow the decedent’s heirs to file a claim.
While a surviving spouse has sole authority to bring a lawsuit within the first year following the decedent’s death, he or she often acts as a representative of the interests of a decedent’s children. Thus, there is a presumption the surviving spouse will make a good faith effort to adequately represent the rights and interests of the surviving children. Recognizing the surviving spouse’s dual role, the Colorado Jury Instructions explicitly provides that, in determining liability and awarding damages, the jury should consider, not only what is owed to the plaintiff, but also what is owed to those the plaintiff represents.
If there is no surviving spouse, the decedent’s heirs may bring a wrongful death lawsuit. Under Colorado law, the term ‘heirs’ has been narrowly construed to include only lineal descendants of the decedent. The term does not apply to nieces or nephews, siblings, or adult adoptees. The rationale for limited recovery to lineal heirs is that collateral kindred, however remote, who derive no pecuniary benefit from the continuance of the life of the decedent should not be entitled to benefit from his or her death.
In addition to a surviving spouse and/or heirs, a 2009 amendment provided that “designated beneficiaries” may also bring a wrongful death claim. A “designated beneficiary” is one who has entered into a designated beneficiary agreement whereby the individual has been designated as a beneficiary for the purposes of ensuring the decedent’s rights and financial protections are protected.
In the second year following the decedent’s death, the surviving spouse, surviving heirs, or a designated beneficiary may file a wrongful death lawsuit separately or in combination with another class. However, if the decedent’s heirs commence a lawsuit in the second year, the surviving spouse and/or designated beneficiary have the right to join the lawsuit within ninety days after filing.
The parents of a decedent are not entitled to file a wrongful death claim if the decedent has a spouse or a child, even when the decedent’s spouse or child declines to do so. The rationale is that the parents of an unmarried and childless decedent are more likely to suffer death-related financial losses than are the parents of a decedent who is married and/or has children.
In most cases, determining which party is entitled to bring a wrongful death action is as easy as outlining a decedent’s family tree. In other cases, however, parties may have conflicting claims. Examples include situations where someone claims to have been common law married to the decedent or circumstances where a child claims to be an heir of a decedent but paternity has not been established.
Statute of Limitations for Wrongful Death Lawsuits
The statute of limitations refers the deadline a party has to file legal proceedings, is similar to claims for other acts of negligence. Specifically, a party has two years to file a wrongful death lawsuit pursuant to Colorado law. Prior to 1987, a wrongful death claim accrued on the date the plaintiffs discovered, or should have discovered, the alleged negligence resulting in death. However, this rule was changed, in part, due to the anomalous possibility that a wrongful death claim could expire before the decedent passes away.
Currently, the two-year statute of limitations begins to run on the date of the decedent’s death. There are limited situations codified to allow a party to file a lawsuit beyond the statute of limitations. Specifically, the statute of limitations can extend past the date highlighted herein if the plaintiff was operated under a disability or where the defendant engages in fraudulent concealment of facts pertinent to the existence of a claim.
Liability in a Wrongful Death Lawsuits
Claimants in a wrongful death claim must demonstrated beyond a preponderance of the evidence the at-fault party negligently caused the decedent’s death. The right of the claimants to seek damages does not arise from a separate tort committed against the claimants, but instead is derivative of the fatal injury sustained by the decedent. Therefore, the survivor’s ability to pursue justice is derivative of and dependent upon the right the decedent would have had if he or she survived. Based on the derivative nature of the action, any affirmative defense available to the tortfeasor against the decedent is also available in the claim brought by the surviving family of the decedent. This includes the affirmative defense of comparative negligence.
While the decedent’s standing is generally dispositive of the standing the surviving family members have, there are several situations in which the standing of the surviving family, as opposed to the decedent, is dispositive. For example, if the decedent would have been barred from filing a personal injury lawsuit because of the statute of limitations, his or her surviving family members can file a wrongful death lawsuit within two years following the death. Another example includes when a spouse died in a car accident due to the negligence of the surviving spouse. In this situation, the surviving spouse may not bring a wrongful death case against himself or herself, even though the deceased spouse could have done so.
Damages in Wrongful Death Lawsuits
Under Colorado law, there are a handful of issues relating to damages. However, the calculation of economic and noneconomic damages suffered by the surviving family members, rather than the decedent, can be challenging. Juries in Colorado award damages based on a variety of factors, including the decedent’s income before dying, anticipated future income, and the level of family member dependence. In addition, juries have awarded damages for funeral expenses, pain, and emotional harm caused to the surviving family members.
Economic damages are defined as the actual financial damages incurred as a result of someone else’s negligence. Economic damages are the demonstrable losses sustained by the surviving family members. Importantly, there are no caps on economic damages in Colorado. However, economic damages can only be recovered by the decedent’s dependents, typically a spouse and/or minor children. The value of the economic damages is based on the quantifiable expenses incurred, such as funeral expenses and medical bills, as well as the financial benefit the surviving family members might reasonably have expected to receive form the decedent if he or she lived. The financial benefit claim is based on the decedent’s health and age, his or her ability to earn, and the probable life expectancy of the decedent.
Examples of economic damages recoverable in a wrongful death lawsuit include the following:
- Wages and other compensation the decedent would have earned if he or she had lived;
- Medical treatment costs the decedent incurred as a result of the injury prior to death;
- Benefits lost because of the death; and
- Funeral and burial expenses
Prior to 1989, damages recoverable in a wrongful death case were limited to the “net pecuniary loss” suffered by the surviving family following the decedent’s death. Many viewed this restriction as highly inequitable as it prohibited surviving family members from recovering damages for grief, sorrow, and loss of companionship of their loved ones. In 1989, the Colorado General Assembly remedied the inequity by amending the wrongful death statute to permit the recovery of non-economic damages. Specifically, the amendment to Colorado Revised Statute § 13-21-203 authorized recovery for “noneconomic loss or injury…including grief, loss of companionship, pain and suffering, and emotional stress…” Unfortunately, the Colorado General Assembly also capped the noneconomic damages at $250,000.00. The Statute was eventually amended to permit the Colorado Secretary of State to adjust the caps for inflation.
In loss of companionship cases, damages are meant to represent the benefits an individual would experience from the love and relationship of the individual killed. To be awarded loss of companionship compensation, a jury examines different elements of the relationship in question. Considerations may be living arrangements, the condition of the relationship at the time of loss and what interests and activities the parties had in common and enjoyed.
A loss of consortium, especially in cases where there are children left behind, may also be used to award compensation. Considerations for this type of compensation would be the loss of companionship, assistance, affection and solace that family members suffered as a result of their loved one’s injury or death.
There is an exception to the caps in Colorado. Specifically, the statutory caps can be lifted if the surviving family members can demonstrate by a preponderance of the evidence the decedent’s death resulted from a “felonious killing,” which is defined in Colorado Revised Statute § 15-11-803(1)(b) as any death where the negligent party is charged of first-degree murder, second degree murder, or manslaughter. A criminal conviction of the defendant is not necessary to establish a felonious killing. Notwithstanding the disposition of a criminal proceeding, claimants may petition the court to determine whether the elements of felonious killing have been established by a preponderance of the evidence.
One interesting sidenote includes the determination of whether the charge of vehicular homicide fits into the statutory definition of felonious killing. Colorado Courts have determined that surviving family members may circumvent the statutory wrongful death cap if the tortfeasor recklessly caused the death of another person.
A person acts recklessly when he or she consciously disregards a substantial and unjustifiable risk of death. A “substantial and unjustifiable risk” constitutes a gross deviation from the standard of care a reasonable law-abiding person would exercise under similar circumstances. A risk does not have to be more likely than not to occur to be substantial. A risk may be substantial even if the chance the harm will occur is below fifty percent.
In addition to showing a person created a substantial and unjustifiable risk, the actor must have “consciously disregarded” the risk to act recklessly. A person acts with a conscious disregard of the risk when the actor is aware of the risk and chooses to act despite that risk. A court or trier of fact may infer a person’s subjective awareness of a risk from the particular facts of a case, including the person’s particular knowledge or expertise.
Given the nature of wrongful death lawsuits, the surviving family members may not wish to testify in court regarding their losses. The circumstances surrounding their loss may be too painful to relive by testifying in open court about grief, sorrow and loss of companionship. Recognizing how emotionally painful wrongful death actions are for surviving family members, the Colorado General Assembly enacted Colorado Revised Statute § 13-21-203.5, which permits claimants in a wrongful death case to accept a “solatium amount” in lieu of presenting proof of actual non-economic damages. The Colorado legislature authorized this modest damage recovery because wrongful death actions often translate into years of additional grief and suffering through protracted litigation.
If a wrongful death claimant accepts the solatium award, they need only prove liability and not the extent of their non-economic damages. Accordingly, a claimant can take the solatium award by simply proving the death resulted from the tortfeasor’s actions. This may seem preferable to paying experts to provide opinions regarding non-economic damages and gambling on a jury to award compensation in excess of the solatium award.
Ordinarily, in wrongful death claims, the amount of damages recoverable is subject to reduction by the percentage of fault charged to the decedent or to any designated non-party. However, the solatium amount is not subject to reduction for any comparative fault attributed to the decedent, or any negligence or fault attributable to a designated non-party. The Colorado Supreme Court has held that, once the liability of the defendant is established, the plaintiff is entitled to recover the full solatium amount.
According to Colorado Revised Statute § 13-20-101, any cause of action (other than claims of slander or libel) survives the death of one who has claim to it. Their representatives can then take up that action on their behalf once they are gone. The court hearing such a case would treat it as though the plaintiff were still alive. In a survival action, any damages awarded would be meant to cover the injuries sustained by the plaintiffs. Family and friends cannot receive non-economic damages related to their suffering over the plaintiff’s loss.
Contact our Colorado Wrongful Death Attorneys
If you are considering filing a wrongful death claim in Colorado, it is a good idea to consult with our Colorado wrongful death attorneys at Bowman Law. We have handled countless wrongful death cases over the years and can certainly help guide you and your family following the death of a loved one. Wrongful death cases can be complicated, and the wrongful death attorneys at Bowman Law can explain how the law might apply to your specific situation. Call Bowman Law today at 720.863.6904 or email us for your free consultation.
Owner and Managing Attorney
Jerry Bowman, J.D., M.A., Owner and managing attorney of Bowman Law LLC, takes his responsibility to the legal profession seriously and dedicates his time and effort to providing quality and competent legal representation to clients in Denver and throughout all of Colorado. He holds an MA in Political Science from Wayne State University and earned his law degree in two and a half years from Michigan State University College of Law.