A wrongful death claim is a civil lawsuit that is brought when the negligence or the intentional action of a person or entity causes someone's death. Each U.S. state has its own laws governing wrongful death claims. In this article, we'll examine Wisconsin wrongful death laws, including who may bring a wrongful death claim, the time limits that apply to wrongful death cases, and the types of damages that may be recovered.
Section 895 of the Wisconsin Statutes defines "wrongful death" as a death that is caused by "a wrongful act, neglect or default," and makes a civil lawsuit an option when the deceased person could have pursued their own personal injury claim, had they lived. The idea is that, although the deceased person can no longer bring a personal injury claim, certain other people can -- in the form of a wrongful death suit.
A wrongful death claim is not a criminal case. In a criminal case for murder or manslaughter, the state files charges against a person who is believed to have caused the death of another person. Penalties in a criminal case include jail or prison time, fines, probation, and community service. In a wrongful death case, the estate or family of the deceased person files a civil lawsuit seeking money damages from the person or company believed responsible for the family member's death.
Wisconsin has specific rules governing who may and may not file a wrongful death claim in the state's civil court system. In Wisconsin, the following parties may file a wrongful death claim:
Regardless of which party files the wrongful death claim, if the deceased person left behind a spouse, domestic partner, and one or more children under age 18, the court must "set aside" a portion of of any damages award for the care of the deceased person's dependents. This amount must take into consideration the age and abilities of the dependents, but it cannot be more than 50 percent of the total damages award.
A wrongful death claim in Wisconsin must be filed within three years. If the claim is not brought to court within three years, it may be barred permanently.
The date on which the time limit, or statute of limitations, begins to run depends on when the injury that caused death occurred, or when that injury could reasonably have been discovered.
This makes applying the time limit difficult in some cases. For example, if a car accident causes instant death, the three-year time limit begins to run on the date of the car accident. However, if a car accident causes severe injuries but the injured person lives for several weeks before eventually dying as a result of the injuries, the statute of limitations may begin to run on the date of the accident, rather than the date of death.
The three-year statute of limitations applies both to cases between private individuals or companies and cases that involve a government entity. For instance, if a deceased person suffered fatal injuries after falling from a broken staircase in a government building, the family has three years to file a wrongful death claim against the government body responsible for maintaining the building.
Damages available in a Wisconsin wrongful death claim include monetary compensation for:
The personal representative of the deceased person may also pursue a "survivorship claim" on behalf of the estate. This claim seeks damages for the conscious pain and suffering the deceased person endured from the moment of injury until the time of death. Wisconsin law does not limit the damages that can be recovered in a survivorship claim. Finally, punitive damages are not available in Wisconsin wrongful death cases.