Who Can Sue for Wrongful Death in Pennsylvania?

Who Can Sue for Wrongful Death in Pennsylvania?

When your immediate family member unexpectedly dies, you might be struggling to deal with your grief and the unwelcome in your life. Few life events can compare to the trauma experienced by those who lose their spouses, children, or parents in preventable accidents or other incidents. Compounding the trauma and grief, many people experience devastating financial and emotional consequences when their loved ones are killed.

Originally, the surviving family members of those who died because of the misconduct or negligence of others had no right to file civil lawsuits against those responsible. Instead, the right to pursue legal action was extinguished upon the victim’s death. To rectify this problem, the Pennsylvania Legislature enacted the state’s wrongful death and survival statutes, which provide the legal right for certain surviving family members to recover compensation for the deaths of their loved ones when the deaths were caused by the negligent, intentional, or reckless actions of other individuals or companies.

If you believe someone else caused your family member’s death, you might wonder whether you have the right to file a wrongful death lawsuit in PA against the responsible party. Here’s some information from the wrongful death attorneys at Raynes & Lawn about who can sue for wrongful death in Pennsylvania.


How Does Pennsylvania Define Wrongful Death?

Pennsylvania defines wrongful death in 42 Pa.C.S. § 8301(a). Under this statute, wrongful death is a legal term referring to a situation in which an individual’s death is caused by the following types of behavior committed by others:


  • Wrongful acts
  • Neglect
  • Violence
  • Negligence

This means that when someone is killed because of someone else’s intentional, reckless, careless, or negligent conduct, the death is considered wrongful.

The right to pursue compensation under this statute arises when the victim would have had the right to pursue a personal injury claim against the tortfeasor if the victim had lived.

Some examples of incidents resulting in death that would likely form the basis of a viable wrongful death claim in Pennsylvania include the following:


  • An intentional stabbing
  • A doctor’s surgical error
  • Severe neglect/failure to provide food and water
  • Death caused by nursing home abuse
  • A drunk driver in a car accident
  • An anesthesia error
  • A prescription drug error
  • Failure to diagnose cancer
  • Violent assault
  • Someone recklessly mishandling a loaded gun
  • Reckless drivers in a street race

These are only a few examples of actions that could result in wrongful death litigation. Any intentional, negligent, reckless, or violent act or omission that causes someone’s death could qualify for legal action.

One way to think about wrongful death claims is to think about them as personal injury lawsuits in which the injured victim cannot pursue legal action. Instead, someone else with the legal authority to do so can file a wrongful death lawsuit to recover compensation for their losses.

Like other types of tort lawsuits, the liability of the defendant in a wrongful death claim extends to the payment of monetary damages. These are court-ordered amounts that the jury awards to the surviving family members of the victim that the defendant must pay. If a wrongful death lawsuit in PA is settled, the types of damages and the amounts that will be paid are agreed upon by the parties.


Wrongful Death Lawsuits vs. Criminal Cases

Unlike criminal cases, wrongful death lawsuits are civil actions. If a defendant is found liable for wrongful death, they won’t be sentenced to prison or jail and will instead be ordered to pay monetary damages to the victim. Since the defendant’s liberty interests won’t be at risk in a wrongful death lawsuit, the burden of proof required for the plaintiff to meet is lower than the standard set for criminal prosecutors.

In a criminal case, a prosecutor must prove the defendant’s guilt beyond a reasonable doubt, which is a much higher standard than the burden of proof carried by the plaintiff in a wrongful death lawsuit. A plaintiff must prove the defendant’s liability in a wrongful death lawsuit by a preponderance of the evidence, which means that they must prove that the incident was more likely than not to have occurred as the plaintiff has presented.

Because of the differences in the burden of proof standards and the risks the defendant faces in a civil wrongful death action vs. a criminal trial, a defendant might or might not be criminally charged for the death of a victim. Plaintiffs are allowed to file wrongful death civil lawsuits against defendants even if they are already facing criminal charges, if no criminal charges are filed, or if the defendants are acquitted of their criminal charges at trial.

It is smart for people to pursue a wrongful death lawsuit against a defendant even when the defendant is also facing criminal charges. Since these two legal actions operate under different bodies of law (civil vs. criminal), they can be filed and proceed simultaneously in different courts. If the defendant is found not guilty at trial in the criminal case, it’s still possible for the plaintiff to win a verdict of liability against the defendant in the civil trial and have the ability to ensure accountability for their loved one’s death.

An infamous example of the differences between criminal homicide vs. civil wrongful death actions is the O.J. Simpson legal saga. In the early 1990s, Simpson was criminally charged with murder following the deaths of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman. After a highly publicized and lengthy criminal trial, Simpson was found not guilty and avoided prison. However, the surviving family members of both Nicole Brown Simpson and Ronald Goldman filed wrongful death lawsuits against Simpson, and he was found liable and ordered to pay damages. Filing wrongful death lawsuits against Simpson allowed the families to hold him accountable for his actions even though he had been found not guilty in the related criminal case.


Wrongful Death vs. Survival Actions

Pennsylvania provides two different types of legal actions to pursue compensation following a family member’s wrongful death. The first is a wrongful death lawsuit, and the second is a survival lawsuit. In many cases, plaintiffs will pursue both types of claims in a single lawsuit. The system in Pennsylvania for wrongful death and survival actions is complex, making it important to seek representation from experienced wrongful death attorneys when considering a wrongful death and survival action in Pennsylvania. An experienced attorney at Raynes & Lawn can ensure you file all of the possible claims you can against all potentially liable parties to recover everything to which you should be legally entitled.

A wrongful death lawsuit in PA is a legal claim seeking compensation for the losses the family members have and will suffer because of the death of their loved one. These losses are calculated from the date of the victim’s death until the date of the victim’s anticipated life span if they had survived.

A survival action is a legal claim through which compensation can be sought for the losses and expenses related to the victim’s accident and injuries. These damages are calculated from the date of the accident until the date the individual succumbed and are similar to what would be recoverable in a personal injury lawsuit the victim could have filed if they had lived. The surviving family members can step into the shoes of the deceased victim and file a lawsuit since the victim can no longer pursue compensation on their own.


Damages in a Wrongful Death vs. Survival Action in Pennsylvania

The types of damages that are recoverable in a wrongful death vs. a survival action slightly differ. If you can, pursuing both types of claims might maximize the total recovery amount. A survival action can be filed in addition to a wrongful death claim if the deceased victim survived the accident for even a short time before dying. For example, if a victim lived for 30 minutes after the accident, that would be enough to file both a wrongful death and survival action in Pennsylvania.

Compensatory damages are monetary amounts to compensate for the economic and non-economic losses the surviving family members have and will suffer in a wrongful death lawsuit and include the following types:


  • The monetary contributions and support the victim would have made to the family if they had lived, including money for housing, clothing, food, medical care, household, entertainment, and other expenses
  • The value of the household services the victim would have contributed if they had survived, including childcare, yardwork, cleaning, and cooking
  • Funeral and burial expenses
  • Loss of guidance, support, and companionship
  • Loss of consortium for surviving spouses
  • Emotional and psychological pain and suffering the family has experienced because of their loved one’s death

Before 2010, families could not recover pain and suffering damages through wrongful death lawsuits. However, the Pennsylvania Superior Court’s decision in Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa.Super. 2010) expanded the meaning of services to include the psychological and emotional losses the surviving family members suffered as a result of their loved one’s death. The Pennsylvania Supreme Court denied an appeal of this decision, allowing it to stand.

This change is particularly important in wrongful death cases involving the deaths of children for the benefit of parents. When a child is killed, the household and financial contributions made by the child are minuscule, but the emotional and psychological losses experienced by the parents are great. The court’s decision now allows surviving family members to recover the compensation they are rightfully owed for the grief and emotional trauma they have experienced as a result of their loved one’s death even if the victim didn’t have a job or make significant contributions to the family through household services.

When a wrongful death claim is successful, the proceeds are paid to the beneficiaries without taxation. They also can’t be seized by the victim’s estate creditors for the repayment of debts the victim owed while alive.

In a survival action, the following types of losses are compensable in a successful claim:


  • Medical/hospital expenses incurred to treat the victim’s injury from the time of the accident until their death
  • The victim’s physical pain and suffering
  • The victim’s mental anguish/psychological trauma
  • Estate administration expenses


Who Can Sue for Wrongful Death in Pennsylvania?

Pennsylvania law limits the beneficiaries of wrongful death lawsuits under 42 Pa.C.S. § 8301(b) to the victim’s surviving spouse, child, or parent. Under this subsection, the right of action for a wrongful death lawsuit can only be for the benefit of one or all of these parties, if they survive.

Under subsection (d), the wrongful death statute addresses situations in which the victim is predeceased by all of the allowed beneficiaries under (b). According to this provision, the personal representative can file a wrongful death lawsuit for the benefit of the victim’s heirs under the intestacy laws of Pennsylvania when the victim has no surviving spouse, children, or parents. In that situation, any proceeds recovered will be paid into the estate and distributed to the victim’s heirs under the intestacy laws in the Pennsylvania Probate Code. Any of these parties can file a wrongful death lawsuit in Pennsylvania.

While the wrongful death statute addresses for whose benefit a wrongful death lawsuit can be filed, who can file the action is controlled by 231 Pa. Code § 2202 (Pennsylvania Rule 2202). According to this rule, only the personal representative of the estate can file a wrongful death lawsuit for the benefit of the spouse, children, and parents of the victim. The representative is either the executor named in the victim’s will or an estate administrator appointed by the court to handle the victim’s final affairs.

Rule 2202 includes an exception, however. If the personal representative fails to file a lawsuit within six months of the victim’s death, any of the victim’s beneficiaries or intestacy heirs can file a lawsuit as trustee ad litem against the defendant on behalf of all of those who are entitled to compensation.

In a wrongful death claim, only the children, spouse, and parents can recover compensation. If there is no surviving spouse, parent, or child, the personal representative can recover compensation through a wrongful death lawsuit on behalf of other, more-distant relatives. By contrast, anyone who is named as a beneficiary in the victim’s will, including family members, charities, and friends, can recover compensation through a survival action. If there is no will, any relative who stands to inherit under the laws of intestacy can recover compensation through a survival action.


Rules for Filing a Wrongful Death and Survival Action in Pennsylvania

As previously explained, who can sue for wrongful death and survival in Pennsylvania is restricted. The personal representative must file a claim on behalf of those who are entitled to compensation. In most cases, the personal representative will be a close family member who has either been named in the person’s will as the estate’s executor or someone who steps forward to be appointed as an administrator if the victim died without a will.

The personal representative might be the victim’s surviving spouse, parent, or child and be both the representative allowed to bring the claim as well as one of the identified beneficiaries. However, any compensation recovered will be payable to all surviving beneficiaries (spouse, parent, or child). If the victim died without a will, the personal representative can pursue compensation on behalf of the victim’s heirs. Any compensation would then be paid into the estate and distributed under Pennsylvania’s intestacy laws.

Before the personal representative can file the wrongful death and survival action, they must first request an order from the court to get the authority to act. The representative can file a petition to be qualified as the estate’s personal representative, and the judge will sign an order appointing them. If you want to be appointed as your loved one’s estate representative, you should consult the wrongful death attorneys at our law firm to ensure the appropriate paperwork is submitted to the court within the correct timeframe.

If the representative of your loved one’s estate fails to file a wrongful death lawsuit within six months, you can file a lawsuit if you are a beneficiary or heir of your loved one’s estate. Under Rule 2202, only one lawsuit can be filed. This means that if you file a claim, other family members can’t also pursue separate actions. Instead, all claims will be collapsed into a single action that will benefit all of the beneficiaries or heirs.


Proving a Wrongful Death and Survival Action

To prove your wrongful death and survival action in Pennsylvania, you will need to prove the following legal elements of negligence:

1. Duty of care – You will need to prove the defendant owed your loved one a legal duty of care to act reasonably to prevent foreseeable injuries to others. In the case of a wrongful death case based on medical malpractice, you will need to show that your loved one and the medical provider formed a provider-patient relationship and establish what the relevant medical standard of care is for a reasonably prudent provider in the same area and field of practice. In other situations, all people owe a general duty of care to prevent harm to others by acting reasonably.

2. Breach of the duty of care – The second legal element you will need to prove is the defendant’s actions constituted a breach or violation of the duty of care. In a medical malpractice wrongful death case, you will need to show the treatment provided by the practitioner deviated from the established medical standard of care.

3. Causation – After proving duty and breach, your next step will be proving causation. This means you will need to present evidence showing that the defendant’s breach of the duty of care was the direct cause of your loved one’s accident and death.

4. Damages – The final element that you will need to prove is your damages. You will have to present evidence of the losses you have suffered for a wrongful death claim and those your loved one suffered for a survival action.

Each of these elements will require you to present substantial evidence to meet your burden of proof, including such things as photographs, witness testimony, medical records, medical bills, your loved one’s wage records, and expert testimony.

If you prove three of the elements but fail to meet your burden for the remaining one, you won’t be able to recover damages for your losses. Plaintiffs must meet the burden of proof for each element to hold the defendant liable. An experienced attorney can help by thoroughly investigating what happened, gathering evidence, interviewing witnesses, and consulting relevant experts to give the insurance company and jury a thorough understanding of what happened and the liability of the defendant.


Talk to Our Pennsylvania Wrongful Death Attorneys

If your spouse, child, or parent was killed because of an accident or an intentional act caused or committed by someone else, you might have the right to recover compensation for your family’s losses. If you are the personal representative of your loved one’s estate or are an heir or beneficiary of an estate for which the personal representative has failed to file a wrongful death claim within six months of your loved one’s death, you should speak to an experienced wrongful death attorney at Raynes & Lawn immediately. Call us for a free consultation at 1-800-535-1797 to learn about your rights and legal options.

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