WHO HAS STANDING – WHO CAN SUE AND WHEN
In Colorado, wrongful death lawsuits can be brought by surviving members of the deceased for any claim that the deceased would have been able to bring had they survived. Wrongful death statutes are based on the premise that certain surviving family members have a right to recover the damages caused by the death of their family member. The family members that have a right to sue (the right to sue is called “standing”) the wrongdoer are the surviving spouse, surviving heirs, and surviving parents. There are statutory rules governing when each family member can file a wrongful death claim:
- In the 1st year after death: Only the surviving spouse may file a lawsuit. If there is no spouse, the heirs of the deceased may file.
- In the 2nd year after death: The spouse, and/or the heirs of the deceased may file a lawsuit.
- If the decedent has no surviving spouse and no descendants, then the decedent’s parents may bring suit for wrongful death.
These rules are called “priority” and the priority is in favor of the spouses, the descendants, or heirs, and the parents – in that order.
No matter who sues, a wrongful death action must be filed within two years of the accrual of the action – usually within two years of the date of the death
INTERPLAY BETWEEN CRIMINAL AND CIVIL LAW
When someone wrongly causes another person’s death, their level of legal accountability is categorized into classes, and this is done according to the responsible person’s “culpable mental state,” or “mens rea”. It may be useful to think of this as their level of intent. From the least culpable to the most culpable, these are : negligent, reckless, and intentional. All three levels of intent allow both criminal and civil prosecution, and it is imperative that you retain an experienced wrongful death attorney with experience in both areas of the law.
When someone fails to take care not to injure someone else, that is called negligence. It means, in essence, ignoring your duty to exercise appropriate care to not hurt someone else. A common example of negligence is not paying attention to the road ahead of you while driving. This is probably the most common form of wrongful death claim, and encompasses claims such as most auto accidents and the majority of premises liability claims. In some states including Colorado, a district attorney can bring a criminal charge for negligently injuring or killing someone, and when appropriate, they should be called on to do so.
Regardless of what action the district attorney takes, when a person negligently kills another person, the decedent’s family can still bring suit for a variety of damages, including loss of income, medical bills, pain and suffering, and loss of companionship. Skilled and experienced attorneys at Baumgartner Law will guide you through identifying and making claims for the categories of damages.
When someone acts in a way that deliberately disregards the danger that their actions cause to another person, that is called “recklessness.” In Colorado, reckless causing death is frequently called “manslaughter” in the criminal justice system. When a district attorney believes that they can prove deliberate disregard of a known threat, they should bring felony charges for reckless endangerment, manslaughter, and more.
When recklessness is attendant to a death, the decedent’s family has the right to pursue all economic and non-economic damages caused by the incident, as well as “punitive” or “exemplary” damages, which are money awards that serve to punish the wrongdoer and prevent other people from engaging in the same conduct.