NRS 41.085 is Nevada’s wrongful death statute.
What is wrongful death?
Wrongful death is the most serious claim a person can sue for. When a victim dies due to someone else’s fault, that victim’s estate or heirs can sue the at-fault person for it.
A common example is when a drunk driver causes a fatal car accident. The victim’s family can sue the drunk driver for the “wrongful death” of the victim (called the “decedent”).
Wrongful death is a civil claim, not a criminal claim. If a defendant is found liable in a wrongful death trial, the most the court can do is order him/her to pay money. Courts cannot order prison time in wrongful death cases.
People can be both charged with murder and sued for wrongful death for causing the same fatality. Families typically wait until after the criminal case is done to bring a civil case. (That is what happened in the OJ Simpson case.)
Who has standing to sue for wrongful death in Nevada?
Potential plaintiffs are:
- The decedent’s estate; and/or
- The decedent’s “intestate heirs.” This is legalese for the decedent’s surviving family.
When a decedent is married, his/her spouse and children are the heirs. If the decedent is unmarried with no children, then his/her heirs would be the following:
- The decedent’s parents.
- If no parents, then the decedent’s siblings.
- If no siblings, then the closest living relative to the decedent.
The below people are never allowed to bring a wrongful death lawsuit. It makes no difference if they are the decedent’s beneficiaries:
- Girlfriends or boyfriends;
- Foster children;
- Step-children (that are not adopted); and
What damages can plaintiffs recover?
If the decedent’s estate brings a wrongful death lawsuit, the court may award these damages.
- Special damages. This comprises any medical expenses the decedent incurred before dying.
- Funeral expenses. It makes no difference whether the decedent chooses cremation or burial.
- Compensatory damages. This includes any expenses the decedent could have recovered had he/she not died.
- Punitive damages. Courts may award punitive damages if the defendant acted in a particularly shocking or malicious way.
But if heirs bring a lawsuit, the court may award these damages:
- Grief and sorrow.
- Loss of consortium, comfort, society, and companionship.
- Loss of probable support by the decedent, as determined by the decedent’s age, earning capacity, health, and life expectancy.
- The decedent’s pain and suffering.
When can I sue?
In general, there is a two-year statute of limitations to bring a wrongful death case after the victim dies. But there may be ways to get this time limit extended (such as if there is a criminal trial).
Should I settle or go to trial?
There is no right answer. Plaintiffs should discuss the pros and cons with their personal injury attorney.
Most cases settle out of court without a trial. Trials can be very time-consuming and expensive. And there is no guarantee that the jury will find the defendant liable for wrongful death.
But going to trial has its advantages as well. The decedent’s family feels like it gets its “day in court.” And if the plaintiffs win, the court can impose potentially very large damages.