Wrongful Death

In the absence of a legal exception, the surviving beneficiaries may sue any person who caused the injuries that precipitated the death.

A traditional exception to this rule has been applied to family members. This doctrine is known as family immunity and means that an individual is protected from suit by any member of his family. This rule was intended to promote family harmony and to prevent family members from conspiring to defraud an insurance company. However, its strict application prevented children from legitimately collecting insurance money. Therefore, many states have discarded the strict rule of family immunity. Some limitations have been retained, such as allowing an adult child to sue a parent but not allowing a minor child to do so.

Wrongful death actions filed against state or local government will be allowed to go forward only if the state has waived its SOVEREIGN IMMUNITY, a doctrine that bars lawsuits against the government. Since the 1960s a majority of states have relinquished the right to claim sovereign immunity in many instances. Therefore, if a child drowns in a municipal swimming pool, the parents may be able to sue the city for wrongful death based on negligence.

In states that allow wrongful death actions to be brought against government, there is generally a strict notice requirement. The plaintiff must promptly notify the government that a lawsuit is contemplated in order to give the government an opportunity to estimate the potential losses to its budget. The time period for filing a notice may be as short as 30, 60, or 90 days. Failure to file a notice of claim precludes the possibility of a lawsuit.

In one of the most widely followed wrongful death suits involving a governmental entity, a federal judge in Texas allowed a suit to be brought against the federal government by family members of the Branch Davidians, a religious

A sample demand letter in a case seeking recovery for wrongful death

sect based near Waco, Texas. About one hundred plaintiffs sought $675 million in damages from the federal government, alleging that the government used excessive force in a standoff with the group at its compound. The standoff ended on April 19, 1993, when the sect's compound, which was believed to contain a hoard of weapons, burst into flames, killing everyone inside. Included among the deceased were leader David Koresh and 17 children. The judge, Walter Smith, later found that the federal government bore no responsibility for the incident and was not liable.