If you have a relative who has been killed by the negligence of another, you may be able to bring a wrongful death or survival case on behalf of the person killed.
For a wrongful death cause of action, the personal representative of the estate of the deceased person must bring the claim on behalf of the decedent. Normally the spouse or parent will be appointed the personal representative of the estate. Each action must be brought for the benefit of the wife or husband and children, and if no spouse or children, then for the benefit of the heirs of the person whose death shall have been so caused. Each action is brought in the name of the personal representative for the estate of the decedent. The claim is not brought to recover for injuries to the deceased, but only to compensate the beneficiaries for the loss occasioned by the death of the decedent. S.C. Code of Laws § 15-51-20.
If the jury finds that damages ought to be awarded to the heirs of the decedent, the amount recovered shall be divided among the heirs as if the deceased had died intestate (without a will). South Carolina intestacy laws would apply except where a parent or other party with a possible share of the estate can show that the parent or parents failed to reasonably provide financial support for the decedent and did not otherwise provide for the needs of the decedent during his or her minority. S.C. Code of Laws § 15-51-40. Thus, a parent or parents may be prevented by the probate court from receiving their share of the wrongful death award if the probate court determines that they were not supportive parents. This statute would have no effect if a recovery was made under a survival cause of action and not wrongful death.
Under the wrongful death law, a jury can award damages for (1) pecuniary loss; (2) mental shock and suffering; (3) wounded feelings; (4) grief and sorrow; (5) loss of society and companionship, (6) loss of decedent’s ability to earn money for the support, maintenance, care and protection of the beneficiaries; and (7) reasonable funeral expenses. Punitive damages are also recoverable when the defendant has acted recklessly, willfully, or maliciously, and this is proved by clear and convincing evidence.
The South Carolina survival statute provides that a cause of action for injuries to a person shall survive the person's death, with damages recoverable by the legal representative of the deceased. S.C.Code Ann. § 15-5-90 (1976). Damages in a survival action include recovery for the deceased's conscious pain and suffering and medical expenses. See generally Baker v. Sanders, 301 S.C. 170, 391 S.E.2d 229 (1990) (ruling that the Tort Claims Act does not preclude a survival action for conscious pain and suffering and medical expenses when an injured person later dies as a result of the tort). In addition, § 15-5-100 authorizes recovery for funeral expenses. S.C.Code Ann. § 15-5-100.
A probate judge, circuit court judge, or federal district judge has to approve any wrongful death or survival cause of action settlement. Please contact the experienced trial attorneys at Koon Cook & Walters, LLC to help you when the death of a loved one has been caused by the negligence of another person.