In North Carolina, when a person dies as a result of the legal fault of another party's action—whether accidental or intentional—the deceased person's estate could be eligible to file a wrongful death lawsuit. In this article, we'll take a look at some of the main components of North Carolina's wrongful death law, including:
North Carolina law defines a "wrongful death" as one that is caused "by a wrongful act, neglect, or default of another" person or entity, of a kind that would have entitled the person to file a personal injury lawsuit if he or she had survived. (N.C. Gen. Stat. § 28A-18-2 (2021).) So it can be helpful to think of a wrongful death case as a personal injury claim in which the injured person is no longer available to bring his or her own case to court. Instead, another party must bring the matter to court on behalf of the deceased (more on that, below).
As with a personal injury claim, many types of events can be the basis of a wrongful death lawsuit, including:
Also as in other types of personal injury lawsuits, the defendant's liability in a successful wrongful death case is expressed solely in terms of financial compensation ("damages") that the court orders the defendant to pay to the deceased person's survivors or estate. This is one major difference between a wrongful death lawsuit and a criminal homicide case, where a conviction can result in jail or prison time, fines paid to the state, probation, and other penalties.
There are other differences between a criminal prosecution for homicide and a wrongful death civil lawsuit. For instance, in a criminal case, the accused's guilt must be established "beyond a reasonable doubt," which is a very high bar for the prosecution to clear. In a civil lawsuit, the defendant's liability must be shown only "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the death. North Carolina law specifies that it is possible, though, for a single act to result in criminal charges and a wrongful death claim: A defendant can be sued for wrongful death in civil court while facing criminal charges related to the same death.
Learn more about proving liability in a wrongful death case.
Some states permit the deceased person's surviving family members to file a wrongful death lawsuit. In North Carolina, though, only the personal representative (sometimes called the "executor") of the deceased person's estate may file the claim in court. If the deceased person had a will, he or she most likely named a personal representative there. If the personal representative named in the will cannot or will not serve, or if the deceased had no estate plan, the court will appoint another individual. Surviving spouses, parents, or adult children are common choices of personal representative.
Read more about who has the legal right to file a wrongful death lawsuit.
Wrongful death lawsuits must be filed within a certain period of time, set by a law called a "statute of limitations." A wrongful death claim must be filed in a North Carolina court no later than two years from the date of the person's death. (N.C. Gen. Stat. § 1-53 (2021).) If the lawsuit is not filed within this two-year time period, the court will almost certainly refuse to hear it altogether.
In a successful wrongful death lawsuit, the court orders the defendant to pay "damages"—or the plaintiff's claimed losses—to the deceased person's survivors or estate. Damages in a North Carolina wrongful death case can compensate for a number of losses, including:
Punitive damages can also be awarded in a North Carolina wrongful death case if the death was caused by "malice or willful or wanton conduct." Unlike other types of damages, punitive damages are not intended to repay the family or the estate. Instead, they are meant to punish the defendant for the conduct that caused the death and to deter similar behavior in the future.
Read the full text of North Carolina's wrongful death law at N.C. Gen. Stat. § 28A-18-2, and learn more about damages that might be possible in a successful wrongful death case.
If you're considering a wrongful death lawsuit in North Carolina, it's a good idea to consult a personal injury attorney. Wrongful death cases can be complicated, and a lawyer who is experienced in this area can explain how the law might apply to your specific situation.