Wrongful Death

New Jersey's Wrongful Death Act and Survival Statute provide legal remedies to the heirs and dependents of a person killed in an accident and to his estate, as more fully described below.

My wife, a nurse, was killed instantly in a terrible automobile accident. Not only are we grieving terribly for her but her income was essential to maintaining our lifestyle. What damages are my children and I entitled to receive?

The aim of New Jersey's Wrongful Death Act is to compensate survivors for their financial losses resulting from the death. In most cases, the most significant recovery is for loss of financial support. This amount is based on the monetary contributions which the decedent reasonably might have been expected to make to the survivors; it is not based on their needs. A jury can consider the impact of inflation and, since income would be spread over the remainder of the victim's working life, any recovery or award must be discounted to reflect the present value of future projected earnings.

In addition to loss of support, recoverable damages include the loss of companionship, the value of household services such as cleaning, babysitting and other home chores, the monetary value of parental guidance and care which the deceased would have provided her family such as nurture, training, education and guidance, other services normally provided to a spouse as well as hospital, medical and funeral expenses. However, damages for loss of emotional pleasure and punitive damages are not recoverable.

Emotional distress caused by the death of a loved one is not compensable under the Wrongful Death Act but is often compensable in another tort action for the negligent infliction of emotional distress. This cause of action requires the death or serious injury of another caused by the defendant's negligence, a marital or intimate familial relationship between the plaintiff and the injured person, actual observation of the death or injury at the scene of the accident and resulting severe emotional distress.

Any damages recovered in a wrongful death action are for the exclusive benefit of the heirs of the victim and are not available to creditors of the victim. Priority is given to the dependents of the deceased.

I recently lost a child as a result of a head injury he suffered playing football. Am I entitled to any recovery in addition to the damages outlined above?

The loss of a child is particularly painful. New Jersey courts have recognized that children and parents have a special relationship which changes as the parties age. As a result, in awarding damages in a wrongful death suit, New Jersey juries may consider the parent's loss of a child's companionship and advice as the parent grows older as well as the reasonable expectation of support based on the future career plans of the child. Of course, evidence supporting these claims is required.

My husband suffered terrible pain for a full month before the injuries from his construction accident took his life. Isn't he entitled to some kind of compensation for that?

Yes, he is. While survivors are permitted to collect for their financial losses under the Wrongful Death Act, the deceased is not permitted recovery pursuant to that law for the aspects of his life which he will not enjoy -- things for which he would have been compensated if he was merely injured.

New Jersey has a separate statutory remedy, called a survivor action, which compensates for losses to the decedent. Instead of belonging to the next of kin, monetary awards in the survival action belong to the decedent's estate. Of course, the heirs of the victim will be the ultimate beneficiaries but these amounts are available to the creditors of the victim.

The survival statute allows for recovery for an injured party for losses incurred up to the time of his death. Under these provisions, the decedent is allowed to collect for pain and suffering, the loss of enjoyment of life, lost earning capacity, and out-of-pocket expenses incurred prior to his death.

This has been such a traumatic period. Do I really need to retain an attorney now, too?

The success of your case depends not only on the merits of your case but on your attorney's understanding of New Jersey's complex statutory wrongful death law and survivor statute. Although in many instances a wrongful death action is similar to a personal injury action, a crucial difference lies in the type of recoverable damages. A wrongful death action permits recovery for financial losses only. Although damages are not awarded for emotional loss, pain and suffering, and other non-financial losses, New Jersey courts have taken an expansive approach in permitting recovery. Not only do you need an attorney, you need an attorney who understands the complexities and nuances of the law and who has experience in dealing with these types of cases -- like the attorneys at Stark & Stark.

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