Oregon's wrongful death 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 Oregon's wrongful death statutes, including how the law defines "wrongful death," who is allowed to file a wrongful death lawsuit, the types of damages available, and the time limit for filing this kind of case in the state's civil courts.
Under Oregon law, a "wrongful death" is defined as a death "caused by the wrongful act or omission of another," when the act or omission would have allowed the person to file a personal injury lawsuit had he or she survived. (Or. Rev. Stat. § 30.020 (2021).) In other words, a wrongful death occurs when one person dies as a result of the legal fault of another person or entity, including by:
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, in which 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 a criminal case, the prosecution must establish the accused's guilt "beyond a reasonable doubt," which is a very high bar 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, 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.
Get more details about proving liability in a wrongful death case.
In a wrongful death claim, unlike in a personal injury case, the injured person is no longer able to file his or her own legal claim. Instead, another party must step in and file the lawsuit. In some states, the deceased's family members can file the wrongful death claim. In Oregon, however, only the personal representative (sometimes called the "executor") of the deceased person's estate can file the lawsuit. If the deceased has prepared a will, he or she typically will have named a personal representative there. If there is no will, or if the appointed personal representative cannot serve, the court can appoint someone.
"Damages" are the plaintiff's claimed losses in a personal injury case. In a successful wrongful death lawsuit, the court will award damages to the deceased person's estate or surviving family members to compensate for a range of losses. In Oregon, damages can be awarded for:
Punitive damages may be awarded in cases where the defendant acted with extreme negligence or intentionally caused the death. Unlike other types of damages, which are intended to compensate the estate and survivors, punitive damages are meant to punish particularly bad behavior and send a message that extremely negligent or intentional wrongdoing will not be tolerated by society.
Note that under Oregon law "noneconomic damages" are capped (or limited) at $500,000 in wrongful death cases. Noneconomic damages are those that are more subjective and difficult to quantify with a dollar amount, such as pain, mental suffering, emotional distress, humiliation, injury to reputation, and loss of care, comfort, companionship and society. This cap does not apply to economic damages, which include compensation for past and future medical bills, lost income, and reduced earning capacity. (Or. Rev. Stat. §§ 31.705 and 31.710 (2021).)
Learn more about the damages that might be available in a wrongful death case, and read the full text of Oregon's wrongful death statute at Or. Rev. Stat. § 30.020.
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 Oregon, the statute of limitations that applies to most wrongful death lawsuits sets a filing deadline of three years from the date of the deceased person's final injury. If the claim is not filed before the time period expires, it will almost certainly be barred from court entirely. (Or. Rev. Stat. § 30.020 (2021).)
Because the date of death is not controlling for purposes of Oregon's law, if a significant amount of time passes between the date of final injury and death, the time to file a wrongful death claim could be shorter than expected. And there are a few circumstances in which a different statute of limitations might apply. If you have questions about how the time limit applies to your case, or if you are running up against the filing deadline, it could be time to speak to an experienced Oregon personal injury attorney.