Law is not black or white, it's grey


Wrongful Death in Florida


What is wrongful death under Florida law?

It is a death that results from a wrongful act, negligence, default or breach of contract or warranty.

When a person dies and it's someone else's fault, the survivors may be able to sue under Florida's wrongful death act.  In Florida, the survivors can sue if the accident happened on land or on a boat in navigable waters.  For example, a wrongful death action can be filed based on a car accident, swimming pool drowning or act of negligence.   

What has to proven to win a wrongful death case in Florida?

First, in a typical negligence claim for wrongful death, the plaintiff needs to prove that the defendant had or owed a duty of care to the deceased, and the defendant breached that duty wrongfully.  Next, actual or proximate cause of death must also be proven.  Actual cause happens when the defendant’s conduct directly causes the decedent’s death. A proximate cause produces the result in an continuous sequence of events. Typically the “but for” test is applied to establish proximate cause: “But for” the wrongful conduct, the result would not have occurred. Damages is the last element.

Who can sue on behalf of a person killed by the negligence of another?

Generally, family members can sue on behalf of a loved one who died.  This includes the husband or wife, kids, parents, potentially blood relatives and adopted brothers and sisters.    

Who are the parties to the wrongful death action?

The decedent's personal representative and any survivors can all potentially be plaintiffs in a wrongful death action in Florida.  This includes the surviving spouse, minor children, adult children, parents, siblings or other relatives, as well as the decedent's estate.

The plaintiffs recover money for the survivors and estate.  The wrongdoer is the defendant.  If the wrongdoer died, the wrongdoer's personal representative is the defendant.  

What kind of damages (money) can plaintiffs sue for in a wrongful death case in Florida?

The surviving husband or wife may recover for loss of companionship, protection, mental pain and suffering, loss of support or services.

Minor kids of the decedent (defined as kids under 25 under Florida's wrongful death statute), and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. 

If a minor child dies, both parents may recover for mental pain and suffering from the date of injury.  Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

Medical or funeral expenses.

The decedent's personal representative may recover for the decedent's estate:

Loss of earnings of the deceased.

Generally, loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value.

How long do I have to sue for wrongful death in Florida?

Generally, the statute of limitations for a wrongful death action in Florida is 2 years.  That means your wrongful death lawyer must file within two years after the date of the decedent’s death.  However, law is not black or white, it's Grey.  There are some exceptions:

A wrongful death action against a governmental entity has a four-year limitation period.

If the cause of action arose on navigable waters (inter-coastal water way, ocean, bay, canal, etc.) and is deemed a maritime claim, it may have a three-year federal maritime limitation period.

If the wrongful death action arose from alleged medical malpractice, then the medical malpractice statute of limitations applies.



Law is not black and white, it's Grey”