Under NRS 41.085, a wrongful death lawsuit in Nevada may be brought when a victim dies or is killed as a result of another person’s wrongdoing. In these cases, the surviving members of the victim’s family or the executors of the victim’s estate may bring a claim for money damages.
A wrongful death action is a civil – not criminal – action. Therefore, the suspect is not facing incarceration. Instead, the victim’s family is seeking payment to compensate them for their monetary losses as well as for their pain and suffering in Nevada.
Families typically have a two-year statute of limitations in Nevada after their loved one’s death to sue the suspect. Even if the suspect was previously charged with murder and acquitted, the victim’s family may still be able to prevail in a lawsuit.
In this article, our Las Vegas personal injury attorneys discuss how to file a wrongful death lawsuit in Nevada. Scroll down, or click on a topic below to jump to that section.
- 1. What is the legal definition of wrongful death in Nevada?
- 2. Who is eligible to file suit?
- 3. Who are the potential defendants? How will they fight back?
- 4. How long do I have to file a lawsuit?
- 5. What money damages can I win?
- 6. What if there was medical malpractice?
- 7. Should I settle or go to trial?
- 8. Can the defendant go to prison?
A person is liable for the Nevada civil cause-of-action of “wrongful death” if that person unlawfully causes another to die. It makes no difference if the killing was done intentionally or resulted from the person’s negligence in Nevada.
These actions arise out of a variety of different circumstances in Clark County. Common examples include (but are not limited to):
- Medical malpractice in Nevada;
- Car accidents or other types of accidents in Nevada;
- Criminal behavior;
- Death during a supervised activity;
- Products liability in Nevada; or
- Occupational exposure to hazardous conditions or substances
Whereas most Nevada personal injury claims are based on English common law and past cases, wrongful death is completely statutory under NRS 41.085.1 In order to prove at a trial that a defendant is liable, the court would need to find that the following four “elements” are true:
- A person died (called the “decedent”);
- This death was caused by another’s wrongful act or negligence or recklessness;
- The plaintiff is an heir or personal representative of the decedent (discussed in section 2 below); and
- The plaintiff suffered damages for monetary injury as a result of the death2
How best to prove this claim depends wholly on the unique circumstances of the case. Common evidence that factors into these types of cases include:
- video surveillance footage
- medical records
- eyewitness testimony
- accident reconstruction expert testimony
- recorded or written communication by the defendant
If one of these cases goes to trial, the defendant would not face prison as he/she would in a criminal case (discussed in section 8 below). Instead, the defendant could be ordered to pay money damages (discussed in section 5 below).
The only parties who may bring a Nevada wrongful death action are:
- The deceased victim’s estate; and/or
- The deceased victim’s “intestate heirs”, which is the legal term for his/her surviving family.3
If a married person is wrongfully killed, that person’s surviving spouse and children would be the heirs. If the victim is unmarried and childless, then his/her heirs would be (in order of seniority):
- parents of the deceased,
- siblings of the deceased,
- the closest surviving family member who is not a parent or sibling.4
Note that the following people are never eligible to bring NRS 41.085 claims, even if they are named as beneficiaries in the victim’s will:
- significant others or fiancées,
- un-adopted stepchildren or foster children,
- close friends
Any one person, organization, or company can face an NRS 41.085 lawsuit in Nevada for wrongfully (“tortiously”) causing a person to die. Some examples of possible defendants include:
- a driver who accidentally killed someone on the road while driving recklessly or intoxicated
- a doctor who negligently killed a patient by administering substandard medical care (medical malpractice)
- a person who intentionally shot or stabbed someone (murder)
- a hotel that failed to monitor carbon monoxide levels, causing a guest to die
- a parent who lets his/her minor child play with a gun, which accidentally goes off and kills another person
Note that venues that serve alcohol may not be liable by selling alcohol to a victim aged 21 or older, even if the victim’s intoxication contributed to someone’s death.5
There are many possible defense strategies the defendants may employ in attempt to escape liability. But in any case, the defendants would try to show that something or someone other than themselves caused the victim to die. Five common defense arguments include:
- the defendant is the victim of mistaken identity
- the defendant was falsely accused by someone else
- the defendant may have been present at the victim’s death but did not contribute to it occurring
- the defendant was acting in lawful self-defense when he/she killed the victim
- the victim signed a legal release agreement taking all responsibility for his/her death (such as in cases where the victim was participating in a dangerous activity like skydiving or car racing)
Therefore, the plaintiffs’ attorney’s job is to cast doubt on the defendant’s excuses and to show they are not credible or relevant.
Plaintiffs generally have only a two (2) year time limit from the date the victim died to file a lawsuit under Nevada law. This is why family is encouraged to consult with a personal injury attorney right away: The wrongful death attorney can then spend this time period compiling valuable evidence and crafting a strong case before the statute of limitations passes.6
NRS 41.085 is the most serious civil claim; therefore, it is unsurprising that these cases often yield very large settlements and jury rewards. In the Mandalay Bay Route 91 Harvest Festival shooting case — where the MGM’s negligence arguably contributed to hundreds of innocent people getting killed — MGM was on the hook to pay the victims’ families hundreds of millions of dollars in monetary compensation.7
If a victim’s estate sues under Nevada state law, the estate may recover the following damages:
- “special damages”, which includes medical bills / expenses that the deceased person incurred prior to death;
- funeral expenses and burial expenses;
- any Nevada compensatory damages that the victim would have recovered from the defendant had he/she not died; and/or
- any Nevada punitive damages that the victim would have recovered from the defendant had he/she not died
Whereas compensatory damages are meant to approximate the estate’s actual losses, punitive damages are meant both to punish the defendants as well as to deter others from acting in a similar wrongful manner.
Meanwhile, heirs who sue may be able to recover money damages for the following:
- pain, suffering, or disfigurement of the victim;8
- loss of probable financial support by the victim;9
- loss of companionship, society, comfort, and “loss of consortium” in Nevada; and/or
- grief or sorrow10
There are many circumstances courts consider when determining the pecuniary loss incurred by someone dying. Some of these include:
- the plaintiff’s age,
- the plaintiff’s earning capacity, and
- the plaintiff’s life expectancy and health
However, the most important consideration is that of decedent’s circumstances at the actual time of death:
For example if an adult wage earner dies and leaves dependents, the major components of recovery include loss of income and loss of parental guidance. In this circumstance, the jury would most likely think about the decedent’s earning at the time of his death and the person’s potential future earnings.
In any case, the plaintiffs’ attorney would thoroughly investigate all the relevant evidence to the person’s death in order to argue for the highest financial rewards possible. Since damages are often speculative and difficult to calculate, the parties may rely on an economist to help determine what the damages should be.11
Sometimes patients pass away because their doctors made mistakes. In this case, the patient’s estate and/or family may try to sue the doctor for wrongful death by committing medical malpractice.
Medical malpractice cases are unique since the plaintiffs have to show that the victim’s death was not a natural progression of his/her illness but rather directly resulted from the doctor’s negligence. Furthermore, the amount of damages that plaintiffs can recover are often capped at a certain amount.12
Learn more in our article about Nevada medical malpractice personal injury laws.
The vast majority of personal injury cases settle through negotiation alone. The settlement process allows all the parties to be flexible and creative when crafting possible resolutions. And by settling, the parties avoid the time and expense of trial in Nevada court.
But many grieving family members understandably want their “day in court” and for the defendant to be found liable in a court of law. The trial process itself may provide closure, and juries may award far more money than anything the plaintiff(s) would be willing to settle for.
But trials carry risks. The defendant may be found not liable for wrongful death. And the litigation process often takes years. Even if the defendant loses, he/she may appeal. This could drag on the proceedings for more years.
One defendant can face both murder charges and wrongful death claims for the same incident in the state of Nevada, but they are entirely separate legal proceedings. It is not unusual for a civil suit to follow a related criminal trial. However it is not necessary, and one can be brought without the other.
Whereas a murder victim’s family may serve as important witnesses in the criminal case, they are not a party to the criminal case: The only parties are the defendant and the state.
Another major difference between criminal and civil cases is the “standard of proof” that the plaintiff is required to meet in order to win. It is much easier for plaintiffs to win a wrongful death case than for the district attorney to win a murder case:
In civil cases, plaintiffs are required to prove that the defendant wrongfully caused the death “by a preponderance of the evidence.” This roughly translates to that it is “more likely than not” that the defendant is liable. But for criminal charges, the state is required to prove murder “beyond a reasonable doubt.” That is a much higher standard.
So even if the Clark County District Attorney declines to file murder charges — or the jury finds the defendant “not guilty” of murder — the victim’s family can still bring and possibly win a civil lawsuit for wrongful death.
One example of this scenario is the O.J. Simpson cases: After he won his criminal trial, Nicole Brown Simpson’s family sued him (and won).
In California? See our article on wrongful death in California.
In Colorado? See our article on wrongful death lawsuits in Colorado.
- Alsenz v. Clark County Sch. Dist., 109 Nev. 1062, 864 P.2d 285 (1993) (“Wrongful death is a cause of action created by statute, having no roots in the common law. Wells, Inc. v. Shoemake, 64 Nev. 57, 66, 177 P.2d 451, 456 (1947). In Nevada, such causes of action are governed by NRS 41.085. Under this statute, both the decedent’s heirs and representatives can maintain a cause of action for wrongful death. In this respect, NRS 41.085 is bifurcated. The act also separately describes the types of damages available to the heirs and the estate respectively.”);
NRS 41.085 Heirs and personal representatives may maintain action.
1. As used in this section, “heir” means a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if the decedent had died intestate. The term does not include a person who is deemed to be a killer of the decedent pursuant to chapter 41B of NRS, and such a person shall be deemed to have predeceased the decedent as set forth in NRS 41B.330.
2. When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death, or if the wrongdoer is dead, against the wrongdoer’s personal representatives, whether the wrongdoer died before or after the death of the person injured by the wrongdoer. If any other person is responsible for the wrongful act or neglect, or if the wrongdoer is employed by another person who is responsible for the wrongdoer’s conduct, the action may be maintained against that other person, or if the other person is dead, against the other person’s personal representatives.
3. An action brought by the heirs of a decedent pursuant to subsection 2 and the cause of action of that decedent brought or maintained by the decedent’s personal representatives which arose out of the same wrongful act or neglect may be joined.
4. The heirs may prove their respective damages in the action brought pursuant to subsection 2 and the court or jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are not liable for any debt of the decedent.
5. The damages recoverable by the personal representatives of a decedent on behalf of the decedent’s estate include:
(a) Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and
(b) Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived, but do not include damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are liable for the debts of the decedent unless exempted by law.
- NRS 41.085; Wells, Inc. v. Shoemake, 64 Nev. 57, 60, 177 P.2d 451 (1947) (“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof then, and in every such case, the persons who, or the corporation which would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured; and although the death shall have been caused under such circumstances as amount in law to a felony.”); Nevada Jury Instructions 10.13-.18; Frances v. Plaza Pac. Equities, 109 Nev. 91, 847 P.2d 722 (1993)(Lexis Overview: Mother’s wrongful death claim was improperly dismissed where condition of apartment complex’s swimming pool was proximate cause of child’s drowning and jury ignored or misapplied the proximate cause instruction with its resulting injustice.).
- NRS 41.085.
- NRS 134.
- Hamm v. Carson City Nugget, 85 Nev. 99, 450 P.2d 358 (1969)(“The section immediately preceding NRS 202.100 (NRS 202.070) does impose a limited civil liability upon the proprietor of a saloon who sells liquor to a minor. By providing for civil liability in one section and failing to do so in the section immediately following, the legislature has made its intention clear. Accordingly, we must conclude that a violation of NRS 202.100 does not impose civil liability upon one in charge of a saloon or bar, nor is such a violation negligence per se.”); also see Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209 (2001)(Lexis Overview: “No breach of restaurant’s duty to take reasonable affirmative steps to aid patrons in medical distress when employees failed to administer Heimlich maneuver but summoned medical help.”).
- Nevada Revised Statutes 11.190.
- Richard A. Oppel, Jr., MGM Agrees to Pay Las Vegas Shooting Victims Up to $800 Million, New York Times (October 3, 2019).
- Pitman v. Thorndike, 762 F. Supp. 870, 1991 U.S. Dist. LEXIS 5822 (D. Nev. 1991)(Lexis: Pain and suffering, to be compensable in a Nevada wrongful death action, must be consciously experienced. Thus, under the provision for pain and suffering, plaintiffs could only recover for that part of the decedents’ “loss of the hedonic value of human life,” that was consciously experienced before death. Furthermore, as the list of recoverable damages is exclusive, and pain and suffering is the only term that could encompass this loss, plaintiffs could not recover for any other part of the loss.).
- Freeman v. Davidson, 105 Nev. 13, 768 P.2d 885 (1989)(Lexis: The legislature carefully chose the words “probable support.” The legislature’s intent should be given full effect. Heirs’ damages, based on the decedent’s lost earning capacity, may include present as well as future loss of support.)
- NRS 41.085; Pitman v. Thorndike, 762 F. Supp. 870, 1991 U.S. Dist. LEXIS 5822 (D. Nev. 1991) (Lexis: Since common law provides no wrongful death action Nevada’s statutory remedy is exclusive; furthermore, the types of damages listed therein are exclusive.); also see “Settling Wrongful Death Claims in Nevada“, Nevada Lawyer (2017)(“In Nationwide Mut. Ins. v. Moya, 108 Nev. 578, 837 P.2d 426 (1992), the Nevada Supreme Court held that while the claim of the estate and the claim of each heir was independent, all claimants of the same decedent must share as a group the one “per person” limit of the tortfeasor’s bodily injury liability coverage. This often forces liability insurers to face the classic problem of multiple claimants making claim to the same inadequate policy limit. The Nevada Supreme Court has not said whether an insurance company can lawfully pay the full insurance proceeds to one of many claimants without breaching its contractual or good faith obligations to the insured, even though other claimants remain unpaid.”).
Freeman v. Davidson, 105 Nev. 13, 768 P.2d 885 (1989)(Lexis: The Supreme Court of Nevada has recently approved the use of an economist to assist in the determination of damages.).
- NRS 41A.015; Gilloon v. Humana, Inc., 100 Nev. 518, 687 P.2d 80 (1984) (Lexis: “In an action for wrongful death, the injury contemplated by NRS 41A.097 relating to medical malpractice is the death of the malpractice victim and the two-year period of limitation begins to run from the time of death or the discovery thereof.”); Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589 (1991) (“…the “loss of chance” doctrine. Under this doctrine, the injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased chance of survival caused by the medical malpractice…Of course, the plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation. Specifically, “[t]he amount of damages recoverable is equal to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action.” McKellips, 741 P.2d at 476. By defining the injury as the loss of chance of survival, the traditional rule of preponderance is fully satisfied. In cases in which the plaintiff prevails, it can be said that the medical malpractice more probably than not decreased a substantial chance of survival and that the injured person ultimately died or was severely debilitated. Specifically, in order to create a question of fact regarding causation in these cases, the plaintiff must present evidence tending to show, to a reasonable medical probability, that some negligent act or omission by health care providers reduced a substantial chance of survival given appropriate medical care. In accord with other courts adopting this view, we need not now state exactly how high the chances of survival must be in order to be “substantial.” We will address this in the future on a case by case basis. There are limits, however, and we doubt that a ten percent chance of survival as referred to in the example in the dissenting opinion would be actionable. Survivors of a person who had a truly negligible chance of survival should not be allowed to bring a case fully through trial. Perhaps more importantly, in cases where the chances of survival were modest, plaintiffs will have little monetary incentive to bring a case to trial because damages would be drastically reduced to account for the preexisting condition.”)