Death is inevitable, but when a negligent party cuts a life short, it can leave surviving family members feeling devastated, confused, and at a loss as to what to do. Although money can never replace the void that a person leaves behind when they tragically pass away, it can help bring justice to the responsible party, give your family closure, and provide financial compensation for your losses. At Ortega, McGlashan, Hicks & Perez, PLLC, we firmly believe that when someone else’s negligence results in the death of an individual, that individual’s family is entitled to recover damages for their loss.
What Is Wrongful Death?
New Mexico Statutes section 41-2-1 defines a wrongful death as one that is "caused by the wrongful act, neglect, or default of another." Think about a wrongful death claim like a personal injury claim, except that the negligent act caused a death. In a wrongful death claim, one must prove the following elements:
- The defendant owed the deceased person a duty of care. The defendant could be a distracted driver, an incompetent doctor, or any other party that contributed to the death. The duty of care is based on the defendant’s role in the incident.
- The defendant breached their duty of care. A breach is anything that another reasonably prudent party would not have done in a similar circumstance.
- The breach of duty of care caused the person’s death. Finally, it must be proven that the defendant’s breach of care was the cause of death. Proving this element may involve eyewitness statements, expert testimony and a thorough investigation.
Wrongful Death Damages
You must also show that you suffered real damages because of the incident, including emotional damages, mental anguish, or loss of consortium. The courts may award compensation for all of these losses, as well as for tangible damages like funeral and burial expenses. A wrongful death claim can provide an important source of financial relief for loved ones the decedent leaves behind. You can receive reimbursement for all medical expenses, the loss of any future income, property damage, any future services normally provided to you by the person who has died, and potentially punitive damages.
Who Can Recover Damages?
In both Texas and New Mexico, a wrongful death claim must be filed by the personal representative of the deceased person's estate. In most cases, the personal representative is named in the deceased's estate plan, such as a surviving spouse or an adult sibling. Although the personal representative is responsible for filing the wrongful death claim, any damages awarded as a result of the claim are held by the estate for the benefit of surviving family members:
- If there is a surviving spouse but no children, all damages go to the spouse.
- If there is a surviving spouse and children/grandchildren, damages are evenly divided between the spouse and the children/grandchildren.
- If there is no surviving spouse but there are surviving children/grandchildren, the damages are divided among the children/grandchildren according to "right of representation" laws.
If the deceased person has no spouse or children, the parents receive the damages awarded in a successful wrongful death suit. If there are no surviving parents, damages go to the deceased person's siblings.
Call (915) 206-5154 or contact us online to speak with an El Paso personal injury attorney.