Can a Wrongful Death Suit be Filed without an Arrest?

Wrongful Death Lawyer

Does there have to be an arrest or conviction in order to file a wrongful death lawsuit? Wrongful death does not always involve criminal behavior, however many do so. A death that occurs as a result of a negligent driver or a medical malpractice may not always result in an arrest, however, if negligence can be proven, the family of the victim is entitled to pursue a wrongful death suit for losses incurred as a result of the death of their family member.

A wrongful death claim is filed in a civil court whereas the criminal court system handles criminally-charged offenses. The two courts have very different definitions of burdens of proof. In criminal court, the constitution requires the judge to instruct the jury to bring a guilty verdict back only if they believe the criminal act occurred beyond a reasonable doubt.  In addition, a unanimous verdict must be brought in order to convict the defendant. Criminal cases with guilty verdicts bring punishments that commonly include incarceration and probation.

How Does a Civil Wrongful Death Case Work?

The burden of proof is very different in a civil wrongful death case. The wrongful death claim only needs to be proven by what is called a ‘preponderance of the evidence’. This means the prosecutor only has to convince the jury that there was a 51 percent chance or higher a wrongful death actually occurred.

Also, the jury does not have to vote unanimously in order to be successful in a wrongful death claim. Only a majority of the jurors is needed to win a case. That is why you may read about some high profile cases where during the criminal portion of the trial the defendant is found innocent, yet in the civil, wrongful death portion of the trial the defendant is found guilty and ordered to pay damages to the victim’s family, sometimes in very large sums of money.

Four Basic Elements of a Wrongful Death Lawsuit

Each of the four elements listed below must be proven in order to win a wrongful death claim for the estate of the deceased.

  • Negligence — the wrongful death attorney Hillsville, VA offers representing the surviving family members must prove that the death occurred as a result of the carelessness, negligent, or recklessness of the defendant.
    • Breach of Duty — Each of us has a duty to perform with a reasonable amount of care in everything we do. Drivers have a duty to drive in a safe manner, for example. The plaintiff needs to prove that there was a duty owed by the defendant and because of the negligent act, that duty was breached.
  • Causation — Once it is proved that the duty to the plaintiff was breached by the defendant, it has to be proven that the death was a result of that breach.
  • Damages — There needs to be proof that because of the victim’s death, a family member suffered financial damages, such as hospital bills, additional medical costs, funeral expenses, loss of income both currently and in the future, pain and suffering the victim may have experienced prior to their death.



Thank you to our friends and contributors at The Law Offices of Mark T. Hurt for their insight into personal injury cases and wrongful death.