Like every state, North Dakota has a set of laws that govern wrongful death claims. These laws permit a deceased person's family to file a lawsuit if the person died as a result of another party's accidental or intentional act. In this article, we'll look at some key aspects of North Dakota's wrongful death statutes, including the definition of "wrongful death," who is allowed to file a wrongful death lawsuit in the state's civil courts, the types of damages available, and the time limits for filing this kind of case.
North Dakota law defines a "wrongful death" as one that is caused by the "wrongful act, neglect, or default" of another individual or entity. The act that causes death may be negligent, reckless, or intentional, as long as it is the kind of act that would have allowed the deceased person to bring a personal injury claim had he or she lived. (N.D. Cent. Code § 32-21-01 (2021).) A wrongful death lawsuit can arise from many different circumstances, including:
It can be helpful to think of a wrongful death claim as a personal injury lawsuit in which the injured person is no longer able to protect his or her own legal interests. Instead, another party must bring the claim to court on behalf of the deceased, both to protect the interests of the deceased person's estate and to protect the legal rights of the deceased person's surviving family members.
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. 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.
Another big difference between a criminal prosecution for homicide and a wrongful death civil lawsuit: In criminal court, the accused's guilt must be established "beyond a reasonable doubt"—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. It is possible under North Dakota law, 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, even when facing criminal charges related to the same death.
Learn more about proving liability in a wrongful death case.
Under North Dakota's wrongful death law, only the following individuals in the order they are listed are allowed to file a wrongful death claim:
The law also states that if "any person entitled to bring the action refuses or neglects so to do for a period of thirty days after demand of the person next in order, that person may bring the action." For example, if the deceased person's child asks the spouse to file a wrongful death claim, and the spouse does not do so within thirty days, the child may then file the claim. (N.D. Cent. Code § 32-21-03 (2021).)
Read more about who has the legal right to file a wrongful death lawsuit.
Like all lawsuits, wrongful death claims must be filed within a specific period of time, set by a law known as a "statute of limitations." In North Dakota, the statute of limitations that applies to most wrongful death lawsuits sets a filing deadline of two years from the date of the death. But, if the death was the result of medical malpractice, the case must be filed within two years of the date the medical error was discovered, but no more than six years from the date on which the malpractice occurred. If the claim is not filed before the applicable time period expires, it will almost certainly be barred from court entirely. (N.D. Cent. Code § 28-01-18(4) (2021).)
When a wrongful death lawsuit succeeds, the court will order the defendant to pay "damages"—or the plaintiff's claimed losses—to the deceased person's survivors or estate. Damages that are available in a successful North Dakota wrongful death case are divided into two categories: "economic" damages and "noneconomic" damages. (N.D. Cent. Code § 32-03.2-04 (2021).)
Economic damages, which are intended to compensate the deceased person's survivors for the financial losses associated with the death, can include:
Noneconomic damages can be more difficult to quantify than economic damages, but they are intended to compensate for the intangible losses that resulted from the death. In North Dakota, noneconomic damages can include compensation for:
Get more details on damages that might be available in a wrongful death case.
If you're considering a wrongful death lawsuit in North Dakota, it's a good idea to consult a personal injury attorney. Wrongful death claims can be complicated, and an experienced lawyer can explain how the law might apply to your specific case.