Filing a lawsuit for wrongful death in West Virginia is very similar to filing a personal injury lawsuit. However, the dynamics of the case can be very different. The standard for proving liability in a personal injury claim is different from the standard used when determining a “wrongful” death actually occurred. It is indeed possible for someone to die as the result of another person’s action but it not be a wrongful death. However, West Virginia courts typically allow a wrongful death lawsuit to advance when there is a possibility that gross negligence did actually occur.
Personal injury case comparison
Certain elements of a personal injury claim also apply in wrongful death claims when the case is being presented and analyzed. The defendant must have an established reasonable duty of care to the decedent, and there must be a proven element of negligence with respect to that owed duty of care. There must also be additional evidence of gross negligence in claiming the death is wrongful as opposed to accidental.
Comparative negligence can matter as well
Individuals who were fatally injured partially due to their own fault can present problems in a wrongful death lawsuit, and especially in an auto accident. All auto accident cases are evaluated for comparative negligence among all drivers, and the state of West Virginia uses the 50% bar for financial recovery for drivers injured in a collision or victims of a premises liability case. Equal shared fault in a two-car accident means neither driver is compensated.
Wrongful death claims also typically include potential for a punitive award from a jury when the case is very serious. This is awarded in addition to all claims for loss of consortium, mental anguish, and loss of future financial support for dependents had the death not happened.
