Wrongful Death Attorneys

A wrongful death claim is a civil claim brought against an individual or corporation to recover damages for a death caused by negligence. Unlike in a criminal charge where the government prosecutes a person charged with a crime, in a civil claim like a wrongful death claim, an individual (called the plaintiff) claims that another person or corporation (the defendant) has failed to act reasonably under the existing circumstances and as a result someone has died.

Most law surrounding the civil system in the United States (called tort law) originates directly from English common law. This means that many laws are relatively consistent across all fifty states. However, English common law has a gaping hole. Under English common law, a person’s family would have no civil legal recourse if that person were to die because of someone else’s carelessness or recklessness. This is obviously wrong!

To patch this hole, individual states have constructed their own “wrongful death” laws that dictate who, when, and how a family member can seek legal recourse, in the form of monetary compensation, for a death. This is good! But it means that states have vastly different laws which can make things more confusing. Colorado’s law can be found in 13-21-201-203 of the Colorado Revised Statutes. As you might imagine, the language is pretty complicated. Before we explore Colorado’s laws further, it is important to understand how these cases work in general.

There are three essential elements in a wrongful death case. First, the defendant must act or not act such that they fail to exercise reasonable care under the circumstances. In other words, they must act negligently.

What this means is that they must do something or fail to do something, on accident or on purpose, that unreasonably put somebody at risk. Second, there must be real damages. For our purposes, this means somebody must have actually died and the plaintiff must have been negatively affected by that death financially and/or emotionally. Third and finally, there must be an element of causation. What this means is that the defendant’s action or inaction, must have caused a person’s death and thus, the plaintiff’s suffering. The negligent action and the death cannot be independent events.

Negligence, damages, and causation are the three major questions that judges and juries will decide in a wrongful death case. Some examples of wrongful death cases include deaths that resulted from:

• Car accidents
• Work accidents/On-the-job accidents
• Trucking crashes
• Motorcycle crashes
• Birth injuries
• Medical malpractice
• Slip and falls
• Bicycle and pedestrian accidents
• Dog bites/Animal attacks
• Intentional harm to someone else
• Reckless driving/Drunk driving
• Defective Products

In Colorado, the laws surrounding who can file a wrongful death claim can appear quite complicated because whether and when you can file a claim depends on your relationship to the deceased. However, there are some broad and easy rules to understand. First, no claim can be filed later than two years past the date of your loved one’s death. Second, only one claim can be filed per deceased person. This means if there are multiple interested parties, say a spouse and multiple children who are eligible under the law to bring a wrongful death claim, then one or more of these eligible parties can bring the formal claim.

Under Colorado law it only takes one eligible party to bring the claim. Others with eligibility can choose to formally join the wrongful death claim or not join. Regardless of whether others with eligibility choose to formally join, the person or persons who actually do bring the formal wrongful death claim are required to recover damages for ALL of those who were eligible to bring a wrongful death claim- even for those who decided not to formally participate.

Again, this is because under Colorado law there can never be more than one wrongful death claim and as a result, the damages suffered by ALL eligible family members must be recovered in that one claim. And when any money is recovered on the wrongful death claim, Colorado law requires that the money be split or shared among only the eligible family members who had a right to bring or participate in the wrongful death claim. Colorado law is very particular about how the money is split but this split will depend upon which family members are eligible to bring the claim, how many total eligible family members there are and upon whether the person who died has a surviving spouse.

For more detailed information regarding which family members are eligible to bring a wrongful death claim under Colorado law, follow the flowchart below.

The information on this chart is no substitute for legal advice. Sometimes, the time periods in which you can file a claim are different depending on who caused the death of your loved one. No matter your relationship with your loved one, it is important to seek legal advice as soon as possible to ensure there are no special circumstances in your case.

This is perhaps the most technical question. Before we begin, it is helpful to remember that a wrongful death claim is a civil claim so the only damages you will receive is monetary compensation. This claim will not put anybody in jail. That being said, there are two types of damages you can seek, compensatory damages and punitive damages. As the name may suggest, compensatory damages are meant to compensate you for any financial losses or emotional anguish you might suffer. Punitive damages (sometimes called exemplary damages), however, are intended to punish the person who inflicted that loss. Punitive damages may only be sought in the most egregious of cases: if the person who caused your loved one’s death acted recklessly or intentionally. We will be talking first about compensatory damages.

In a Colorado wrongful death case, as the plaintiff, you may recover compensatory damages for a variety of reasons. Some obvious examples are for your loved one’s burial expenses, your grief and mental anguish, and your loss of your loved one’s companionship (called loss of consortium). Additionally, you may recover damages equivalent to the financial support your loved one would have provided you. Importantly, this does not mean your loved one’s total expected earnings, just the earnings you would have been provided. For example, if your loved-one’s income was paying for your food, house, or insurance, you may be able to recover money to compensate you for those losses.

As we discussed above, non-economic or incalculable damages are different from economic or calculable damages. In Colorado, the limit on the amount of money you can receive for non-economic damages such as grief, mental anguish, and loss of consortium is set by the legislature as part of the wrongful death statute. It is adjusted for inflation every two years so if your incident occurred before January 1st, 2020, the cap is $436,070. If it occurred after January 1st, 2020, the cap is $571,870. For the calculable financial expenses such as burial expenses, lost financial support, and medical expenses, there is no cap – you are entitled to recover all that you lost.

All the above applies to compensatory damages only. Punitive or exemplary damages, which are intended not to compensate you for your losses but rather to punish the one who inflicted those losses, may also be sought. However, the circumstances under which you can recover are limited. Colorado’s Exemplary Damages statute is found under 13-21-102 of the Colorado Revised Statutes. It states that you can only recover exemplary damages for circumstances of “fraud, malice, or willful and wanton conduct.” You might hear this referred to as a “standard of conduct.” The statute says that if your case entails an intentional false representation of a matter (fraud), someone who caused harm or death with the desire or intention to do so (malice), or a person who, despite knowing of a risk, acted with a reckless disregard for your loved one’s life (willful and wanton conduct), you can pursue exemplary damages. In these most egregious cases, the legislature has concluded that it is important to deter the perpetrator of the act by imposing these additional damages.

However, the court does not take the infliction of a punishment lightly. So, if you want to pursue exemplary damages, the judge alone must decide if the evidence you present suggests the standard of conduct outlined above is met before a jury can ever consider the matter. The evidence required for this initial determination is called prima facie proof. If you are awarded exemplary damages, they cannot exceed three times the amount of your compensatory damages. In the end, the amount of damages you ultimately receive is entirely dependent on the facts of your case, and while we hope this information is helpful for you, it is still important to seek legal advice on these issues.

If you are not one of the family members with the right to file a wrongful death claim, you may still be able to file a survival action. A survival action is different than a wrongful death claim because it is filed on behalf of the deceased’s estate rather than by an individual. Like a wrongful death case, it requires the same three elements we discussed earlier: negligence, damages, and causation.

However, the only damages that can be recovered are financial damages incurred by the deceased between the time of the accident and death. Common examples include medical bills, lost wages, personal property damage, and funeral expenses. Notice there is no recovery available for pain and suffering or loss of consortium in a survival action. Also important is that these damages are recovered by the estate not any individuals, however, if you are a beneficiary of the estate, you may ultimately receive a portion of these damages.

In the end, all the factors of a wrongful death case we have discussed vary widely depending on each case’s unique facts. Sometimes, however, even the facts can be muddled, confusing, overwhelming, and perhaps even hidden from you by the individual or corporation that caused your loved one’s death.

Seeking legal advice can help you clarify the facts of your case, understand your options, and discern the procedure for each option. With all the information you need, we hope you will feel empowered to make the decision on how to proceed, feel confident in that decision, and know that we have your back.

We know how heartbreaking and overwhelming it can be to suddenly lose a loved one. Remember, you are not alone. There are several local Denver resources, support groups and grief counseling organizations that can help you and your family make it through this difficult time. Here are some that you can contact right away.

Local Denver Support Groups:

• UCHealth Grief & Bereavement Groups in Denver
• Denver Hospice Grief Support
• Grief Therapy in Denver
• Grief Support Meetups in Denver

Resources For Grief Guidance And Counseling:

• How to Cope with Grief
• The Truth about Grief and Loss – Guide to the Grieving Process
• Grief: Loss of a Love One

If and when you are ready to share your situation with our wrongful death attorneys, we are prepared to help you seek justice on behalf of your loved one. You can contact our team for a free and confidential consultation.