To establish legal liability for wrongful death, a plaintiff must first demonstrate that the defendant had a duty of care to the decedent.
Duty of Care
A duty of care can be established by the existence of a special relationship. Common examples include a doctor who has a duty to use reasonable competence and care in diagnosing and treating ailments of a patient and a bus driver to find a sleeping child on a bus after driving a route. Many relationships exist and each carries with it unique and specific rules outlining the attendant duty of care. In the absence of a relationship, negligence, recklessness, or malice intent must be proven.
Breach of Duty
Once it has been shown that a duty of care was owed by the defendant to the decedent, it must then be demonstrated that the duty was breached. With the existence of a relationship, breach usually involves an omission to act, which is construed as an affirmative act according to the law. In other words, doing nothing constitutes an offense. One example was established in Tarasoff v. Regents of University of California. In that case, a mental health patient made statements to a mental health professional that he was planning to murder a woman with whom he had fallen in love but who rejected his advances. After the patient did, in fact, murder the woman, the California Supreme Court found that the doctor failed to meet a duty of care to the murder victim.
If no special relationship exists, winning a wrongful death case will involve demonstrating that the defendant was negligent in ignoring a significant risk posed to others, reckless in executing an action that created significant risk to others, or that the defendant acted with malicious intent to cause death or bodily harm to the decedent.
Malice intent enters into the realm of criminality. Despite the fact that the burden of proof in a criminal case is that of proof beyond a reasonable doubt, a preponderance of the evidence remains the standard in all civil cases, and therefore, it is easier to prove civil liability arising from a criminal act than it is to prove criminal liability.
Of course, evidence is needed to prove any case. Documents such as death certificate, autopsy records, and health records are usually paramount in proving an action for wrongful death. Discrepancies among health records, omissions within a record, or physical altering can constitute liability or attempts to conceal wrongful action on the part of medical professionals. Some verbal statements can be admitted as evidence such as excited utterances, made under stress shortly after an incident, by first responders or doctors.
After liability is demonstrated, a measure of harm will be used by the court to estimate damages. Tax returns or other financial records showing the earning power of a contributor to a household will assist in showing the financial loss associated with the loss of the decedent.
If you suspect that the death of a loved one occurred under wrongful action, learn your rights. Contact or call the Kamerow Law Firm, PLLC at 703-370-8088 and let us help you today.
If a loved one has passed and a will can’t be found, legal action might be necessary to ensure proper distribution of the estate, depending on the existence and claims of surviving heirs.
Under circumstances in which a will has never been executed, the laws of intestacy in the state of Virginia will apply. These statutes contain a strict and straight forward flow chart to be followed in determining the distribution of both real property and personal property. Essentially, current spouses (if they exist) take a portion, and then children will take the remainder in full, at equal shares. If no such heirs exist, the next class of heirs will take, in the same fashion and in the following order: descendants of children, parents, siblings, and finally spouses will take all remaining property if none of the above exist.
It is important to understand that the spirit of probate laws is such that the state abhors escheat. In other words, the laws of intestacy make every attempt to place the property of a decedent into the hands of relatives, rather than to allow that property to be taken by the Commonwealth.
The best way to solve probate issues is to address them before they arise. Speak with loved ones about the existence and location of a will. Insist that copies are placed so that they will be readily available when it comes time for them to be executed. Fire-resistant safes, bank safety deposit boxes, file cabinets of trusted family attorneys, and file cabinets of trusted relatives are all sensible places for copies of wills to be kept. Addressing the creation of a will and its safe keeping during the life of a testator can prevent inequitable distribution of estates after death.
Finding a Will
Upon death, any properly executed will become public information. To find the will of a deceased relative, go to the probate court that holds jurisdiction where the testator last lived and visit the clerk’s office. If this gains no results, search in jurisdictions where the decedent lived prior to death. Upon identifying the decedent, you will be given access to all documents pertaining to the will and probate proceedings. If no will can be located, negotiations with other potential heirs may yield agreements leading do distribution of property. Of course, the dollar value of the estate along with the relationship of the other potential heirs can affect their willingness to agree to terms.
If a loved one has passed, and the absence of a will or one you believe to be invalid threatens to create a questionable distribution of property, learn your rights. Contact or call the Kamerow Law Firm PLLC at 703-370-8088 for a free initial consultation and to let us assist you throughout each step of your case.
Accidents involving a tractor pulling a semi-trailer, a.k.a. truck, semi, big rig, and 18-wheeler, differ greatly from those involving passenger cars in severity, legal liability, and type. Since a truck weighs up to 80,000 pounds, a collision by a car that normally constitutes a minor accident will create much greater amounts of damage and personal injury when caused by a truck.
The braking system in a truck is pneumatic. Air lines and hoses are used to transport compressed air from storage tanks to the braking devices attached to the wheels. An inherent characteristic of this system is that compressed air has a greater distance to travel through the air hoses to reach the brakes at the rear of the trailer than it does to reach the tractor brakes. This, coupled with the fact that compressed air takes time to travel through the hoses, can cause a delay of approximately a second or more for the rear trailer brakes to engage after the tractor brakes have engaged.
Under abrupt braking, and in this brief period during which the tractor is braking and therefore slowing itself but the trailer is not, a situation can arise in which the front of the trailer, which is fixed to the tractor, is being slowed by the tractor, but the rear of the trailer is still free to continue moving. The rear of the trailer will therefore swing either to the right or left pursuant to Newton’s first law of motion, creating an increasingly folded configuration between the tractor and trailer, simulating a pocket jackknife. This causes a loss of control of the vehicle as well as an invasion by the rear of the trailer into the adjacent lanes of traffic. Usually, the perpendicular relationship between the tractor and trailer involved in a jackknife prevents the entire unit from rolling over.
In circumstances in which the tractor and trailer remain largely in line, a rollover is caused when a truck takes a turn at excessive speeds. The maximum allowable height of a trailer is also the most common: 13.5 feet. Configured with a wheelbase of eight and one half feet, the relative extreme height can leverage the centrifugal force of the mass of a speeding and turning trailer to the point where it exceeds the centripetal force of the tires on pavement acting to keep the trailer moving along a curve. The top of the unit then tips over and the truck lands on its side. Improper loading of freight creating high or lopsided centers of mass contribute to rollovers.
Regulation by the Federal Motor Carrier Safety Administration
Because of the great potential for such large and heavy vehicles to cause damage and personal injury, the FMCSA limits drivers of commercial trucks to certain numbers of hours of driving during given periods of 24 hours, 7 days, and 8 days, and sets weight limits not only for the gross vehicle weight of a truck, but also for the distribution of that weight over the vehicle’s axles. If these hours or weight limits are exceeded, criminal and civil liability can result.
If you or a loved one has suffered an injury created by an accident involving a truck, learn your rights. Contact the Kamerow Law Firm, PLLC and let us help you recover compensation for your injuries.