Victims of Wrongful Death in Massachusetts
Massachusetts Wrongful Death Laws allow for recovery against people who are negligent, people who cause death by “willful, wanton or reckless” conduct, against common carriers, and against corporations for defective products. In 25 years of practicing law in the Commonwealth of Massachusetts I have seen far too many wrongful death cases.
In all wrongful death cases, the executor or administrator of the estate must be the party bringing the claim and filing the lawsuit on behalf of the family. Therefore, seeking appointment in the Probate Court is a critical first step.
Who can recover? Absent a will, there are clear laws as to who can recover against a wrongdoer. If there is a spouse and no children, the spouse recovers. If there is a spouse and one child, the spouse receives one half of the recovery and the child share the other half. If there is a spouse and more than one child, the spouse receives one third of the recovery. Of course, it gets more complicated if there is no spouse or children. To further complicate a wrongful death case, distribution is not necessarily awarded based on the law outlined above; a jury can allocate monetary compensation in any proportion supported by the evidence.
Nevertheless, the first step is to prove negligence, or responsibility. Was the defendant negligent in causing the death? When insurance companies and their lawyers are defending the tortfeasor, they put up obstacles at every step of the way. Thus, it is critical that we undertake an investigation as soon as possible. Frequently, an expert is needed to show the jury that the mechanism of injury was negligent by the defendant; such as a motor vehicle accident reconstruction expert. The defense is often based on comparative fault; they argue that the decedent was responsible for a portion of the blame for the accident; the law says that the verdict will be diminished by the percentage of the plaintiff’s negligence – up to 49%.
Damages awarded to families of the victims are more complicated than ordinary claims. The beneficiary is entitled to the “fair monetary value of the decedent” to the beneficiaries, which may include the “loss of reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice.” Experienced personal injury and wrongful death attorneys work with the families to determine each element of the loss. This can be painful, but also cathartic.