Wrongful Death Lawsuits When a Pedestrian Is Killed in a Car Accident

When a pedestrian dies in a traffic accident, surviving family members might be able to take legal action over their losses.

By , J.D. · University of San Francisco School of Law

Traffic accidents involving pedestrians are all too common, and the number of annual pedestrians deaths reached a 40-year high in 2023.

In the wake of these kinds of accidents, what options do the pedestrian's family members have when it comes to the loss of their loved one, and the impact of that loss on their own lives? Will the family (or the estate) need to file a wrongful death lawsuit against the driver who caused the accident? Will this kind of case reach a settlement?

In this article, we'll cover these issues, plus a few more.

Pedestrian Deaths and Wrongful Death Lawsuits

When a pedestrian is killed in a traffic accident, their family members may need to take things to court by filing a wrongful death lawsuit if:

  • the family has tried to get a fair result through the car insurance claim process, but the insurance company isn't coming to the table with a fair settlement offer
  • there's no available car insurance coverage that applies to the accident that led to the pedestrian's death, or
  • the available insurance won't cover all losses the family has experienced over the pedestrian's death.

How Do Wrongful Death Lawsuits Work?

In a wrongful death lawsuit, a deceased person's family members, or the representative of the deceased person's estate, can ask a court to order the defendant (the party who's alleged to have caused the death) to pay money ("damages") as compensation for certain losses resulting from the death.

Even that definition comes with a lot to unpack. This is the stage at which (if you haven't already done so) it's time to discuss your situation with an experienced attorney. Every state has its own wrongful death laws, with different rules for who can file this kind of case, the kinds of losses that might be recoverable in a wrongful death lawsuit, and when the lawsuit must be filed in court.

Let's answer some common questions about how wrongful death lawsuits typically work.

Who Can File a Wrongful Death Lawsuit?

The answer here depends on what the state's wrongful death laws say. In many states, the relevant statutes specify which family members can file a wrongful death lawsuit over a loved one's death (sometimes in order of priority).

In other states, only the deceased person's estate (or a court-designated executor or personal representative) is allowed to file a wrongful death lawsuit.

Learn more about who is allowed to file a wrongful death lawsuit.

Who Can Be Sued for a Pedestrian's Wrongful Death After a Car Accident?

When a pedestrian is killed in a traffic accident, the wrongful death defendant is usually the driver who caused the accident, but in some situations, others also might be on the legal hook, including:

Does Insurance Cover a Pedestrian' Death After a Car Accident?

Yes. When a driver causes a car accident that leads to a pedestrian's death, the driver's liability car insurance (which they're required to have in almost every state) will apply to losses related to the death.

The pedestrian's family can typically file a third party car insurance claim with the at-fault driver's insurance company. In other situations, uninsured motorist coverage or no-fault car insurance might also come into play. Learn more about car insurance coverage for a pedestrian's death.

Will a Pedestrian Wrongful Death Lawsuit Settle or Go to Trial?

If a wrongful death lawsuit goes all the way to trial, and the plaintiff wins, the court will order a damages award for the plaintiff, entered against the defendant. But, chances are the filing of a wrongful death lawsuit will prompt an out-of-court settlement at some point before the trial stage. Get more details on wrongful death lawsuits and settlements.

What's the Difference Between a Wrongful Death Lawsuit and Criminal Charges Over a Pedestrian's Death?

As we discussed above, a wrongful death lawsuit is a civil case brought by a deceased person's loved ones or estate representatives (as the plaintiffs). It's filed against the person or entity they think is to blame for the death (the defendant).

Many wrongful death lawsuits require the plaintiff to prove that the defendant's carelessness or negligence was the cause of the death, but a wrongful death lawsuit can also be brought over intentional or criminal conduct. In situations like this, there could also be a separate criminal action filed by the government, against the person who's allegedly to blame for the death. A defendant can be sued for wrongful death in civil court while (or before or after) facing criminal charges over the same death.

So, in the context of a traffic accident or incident in which a pedestrian is killed, a wrongful death lawsuit might be brought against the at-fault driver, in which the plaintiffs try to prove that the driver's failure to act with proper care caused the pedestrian's death. And separately, an arrest might be made and criminal charges might be brought against the vehicle driver if, at the time of the incident that caused the pedestrian's death, the driver was:

The resulting criminal charge might be "vehicular homicide," "vehicular manslaughter," or a similar offense. Learn more about vehicular manslaughter and other driving-related homicides and the consequences of hitting a pedestrian.

How Long Do I Have to File a Wrongful Death Lawsuit?

Every state has a law (called a "statute of limitations") that sets a strictly-enforced limit on when a lawsuit must be filed by someone who has suffered any type of harm or loss. Different deadlines apply to different kinds of cases. In most states, a specific statute of limitations applies to wrongful death lawsuits. Miss the deadline, and you'll almost certainly lose the right to a legal remedy for the loss of your loved one. Get the details on wrongful death laws in your state.

Do I Need a Lawyer's Help After a Pedestrian's Death?

In a word, yes. A wrongful death lawsuit isn't the type of legal action you want to try handling on your own. You'll want to have a lawyer on your side who understands your state's wrongful death laws, can effectively manage each phase of the lawsuit, and will fight it out in the (often) contentious atmosphere that often comes with litigation.

Learn more about how a lawyer can help with a car accident case, and get tips on finding the right injury lawyer.

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