Losing a loved one is always a painful experience, and it can be worse knowing that there is someone at fault for what transpired. Understanding your legal options can help you know which steps to take, and determine whether or not you should file a lawsuit over a loved one’s untimely death.
What is Considered a Wrongful Death in New Mexico?
In New Mexico, wrongful deaths are defined in the legal code. Specifically, liability for a wrongful death occurs “whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or 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 person 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.”
In plain English, the law means that if a person or corporation, through neglect or a willful act, causes a death, it is considered a “wrongful” death. A lawsuit against the person or corporation responsible is possible when, had the deceased lived, they would have been able to bring a personal injury claim about because of the situation. Because they cannot, the lawsuit must be brought by someone else so that the court can establish liability.
Who Can File a Wrongful Death Lawsuit in New Mexico?
In New Mexico, there are limits on who can file a wrongful death case. In New Mexico, only the deceased’s “personal representative”—known as an “executor” in other states—is allowed to file a wrongful death lawsuit. Executors are generally appointed in the deceased’s will and are responsible for handling the deceased’s estate. Personal representatives must be at least 18 years old and of sound mind, which means that a court hasn’t judged them incapacitated. Unlike other states, a felony conviction does not bar a person from serving as a personal representative.
It’s important to note that New Mexico has a statute of limitations for wrongful death cases. These cases must be filed within three years of the date of death. If you wait too long, you may lose the right to file a lawsuit.
What Damages are Possible in a Wrongful Death Lawsuit?
Depending on the circumstances of the death and the life of the deceased, the damages awarded in a wrongful death lawsuit may vary. Due to the variety of factors that influence what damages are awarded, it’s not possible to give a general answer to how much a wrongful death lawsuit may be worth. However, knowing what influences the damages that are awarded can help give you a sense of what you could win in a wrongful death lawsuit. Damages can be awarded for the following:
- Lost wages and benefits that the deceased would have earned if they had lived
- The deceased’s financial contributions to the household
- Pain and suffering the deceased endured before death
- Medical expenses related to the deceased’s last illness or injury
- Reasonable funeral and burial expenses
- Loss of the deceased’s guidance and counseling,
- Emotional distress due to the death of a parent, child, or spouse
If the deceased was married but had no children, all damages go to the spouse. If married with a surviving spouse and one or more children or grandchildren, half of the damages are given to the spouse, and half is split among the children and grandchildren. If there is no surviving spouse, damages will be awarded to surviving children and grandchildren.
What Makes a Wrongful Death Lawsuit Successful?
In order for a wrongful death lawsuit to be successful, three elements must be present. These are:
- A duty of care is owed,
- The duty of care is breached,
- Breaching the duty of care led to harm to people or property.
Let’s take a deeper look at each element.
First, a duty of care is the “legal responsibility of a person or organization to avoid any behaviors or omissions that could reasonably be foreseen to cause harm to others.” There are a variety of situations in which one party owes another a duty of care. Manufacturers owe a duty of care to those who buy their products, meaning they must be reasonably safe to use and carry warnings about the products’ risks. Doctors owe a duty of care to their patients, meaning they must provide appropriate care for that patient.
Drivers also hold a duty of care to other drivers and pedestrians. At the bare minimum, this means they must avoid harming others, but in practice, a duty of care on the road is more extensive than that. Drivers must avoid breaking the law while they drive, keep their focus on the road, and ensure they’re not driving recklessly or drunk. Failing to take any of those actions can violate the duty of care.
Second, the duty of care can be breached in multiple ways. This can occur through negligence, or the failure to take reasonable steps to prevent a bad outcome, or through intentional acts, such as a crime, that lead to injury to a person or property.
Third, breaching the duty of care must have harmed people or property. It’s not enough to suspect that someone breaching their duty of care led to a death. To win a wrongful death lawsuit, you must prove a direct link between the breach of duty and the ensuing death.
When to Contact an Attorney for a Wrongful Death
Losing a loved one is always difficult. Handling a lawsuit while your family is trying to grieve can be an even greater challenge. If your loved one is deceased because of someone else’s actions, it’s important to take action right away and contact a lawyer. Your lawyer will help collect evidence, draft a demand letter that will create the best circumstances for a settlement, and give you the peace of mind that your case is moving towards a successful conclusion. If you are looking for a lawyer or need advice on your next steps, reach out to Kane Personal Injury for a free consultation.
Please note that this article was created for advertisement purposes, and it does not constitute any contractual legal relationship, nor imply one.