Sayer Regan Thayer and Flanagan, LLP - 401.849.3040
Toll free: 800.637.8170

Little Kids, Big Accidents. Chapter 8 - Dealing With the Loss of A Child.

Little Kids, Big Accidents:

The Ultimate Guide to Child Accidents in Ohio



CHAPTER 8

Dealing With the Loss of A Child



Wrongful death claims are mostly controlled by Ohio Revised Code ยงยง 2125.01, 2125.02, and 2125.03. Those code sections come from the state's probate laws.

The law allows the executor or administrator of the deceased child's estate to bring a claim against the person or entity whose negligent conduct or wrongful act caused the child's death.

A case can be brought if the child could have maintained a claim for negligence or wrongful conduct had the death not occurred. That means the executor would need to show that the other party acted in a negligent or wrongful way and that conduct caused the death. Wrongful death cases can be brought for negligent acts such as car accidents and medical malpractice, or criminal acts like murder and manslaughter.

To prove the case in a negligence context, the executor must show that the defendant owed a duty of care to the child; that duty of care was breached; the breach caused the child's injuries and death; and that the child's estate and beneficiaries suffered damages.

The case must be proven by a standard called "preponderance of the evidence," which essentially means that the evidence must tilt more in the favor of the executor than the defendant. Attorneys often explain the standard by telling jurors they just need to prove their case by 51 percent, which is well short of the reasonable doubt standard that we've all seen in television dramas depicting criminal trials.


Relatives are beneficiaries

Under state law, wrongful death suits are brought in the name of the executor of the child's estate in the name of various beneficiaries. A beneficiary is someone who is entitled to financial compensation should the case be proven.

In Ohio, the beneficiaries in a case involving a child's death are relatives such as parents and siblings. A parent who a court determines had abandoned a minor child may not be a beneficiary in a wrongful death claim stemming from the child's death.

The probate court judge determines how a settlement or award is to be distributed among the potential beneficiaries based on the relationship to the child and the degree of loss to the beneficiary.

If all the beneficiaries are at the same level in the law's eyes - for instance a group of siblings - they can decide among themselves how to divide up the money and ask the court for approval.

Beneficiaries under 25 years old can be treated differently by the Court in order to protect their interests. The Court can create a trust for beneficiaries under 25 and order that the money be held in trust until the beneficiary turns 25 or that it be distributed in accordance with the terms of the trust.

Damages available to beneficiaries

Though it offers little consolation to people who have lost a child, our court system compensates the beneficiaries of a decedent by awarding money. Damages - the term used to refer to the various reasons for which financial compensation can be awarded - are available for the estate and to the beneficiaries.

The estate of the deceased child can be compensated for the medical bills incurred to treat the child prior to death and for the pain and suffering the child experienced as a result of the accident or wrongdoing.

Under state law, the following damages are available to the beneficiaries in all wrongful death cases, not just those involving children:

Loss of society - Under this category, beneficiaries can seek financial compensation for such things as the loss of companionship, care, assistance, protection, advice, guidance, and education provided by the decedent. Obviously, whether we're talking about the death of a child or an adult, it is difficult to put a dollar figure on these types of damages because they're not easily quantifiable. For instance, you can't look in a book to find a dollar amount that would compensate a mom or dad deprived of the time and companionship they would have had with their deceased child. That's the job of your attorney - to place a dollar amount on the loss of a child's society and to justify that amount with a reasoned argument to a jury. Though it's not readily quantifiable, it's certainly a huge and legitimate loss to the beneficiaries - a loss for which they deserve to be compensated.

Mental anguish - Family members can be awarded compensation for the mental anguish they endured as a result of the loss of their loved one. Like loss of society, this may be a hard figure to quantify because there's no formula for setting a dollar value on one's pain stemming from the loss of a child. Nonetheless, it can account for a significant amount in a damages award because most people can relate to the grief experienced as the result of the death of a family member.

Making a case for mental anguish is similar to asking for pain and suffering damages in a routine personal injury case. Your attorney could ask the jurors to award money based on the anguish endured over a set time period such as months or years. Your lawyer may take a different approach by not suggesting a formula and simply asking the jurors to determine a fair figure to compensate family members for the mental anguish they've suffered.


Loss of prospective inheritance - Under this category, beneficiaries can seek financial compensation for the inheritance they might have received from the decedent had the decedent lived a normal lifespan. This likely wouldn't apply in a case involving the death of a child.


Loss of support - This refers to the lost earning capacity of the decedent had he or she not died. The factors taken into consideration for loss of support would be the salary at the time of the decedent's death as well as the amount of money the decedent reasonably could have been expected to earn in the future had the death not occurred. Charts called "life tables" are used to calculate how long the decedent would have been expected to live based on such factors as age at the time of death, gender, and race. As in the case of prospective inheritance, this probably wouldn't be an issue for a case involving the death of a child.

Loss of services - Damages for loss of services are available to beneficiaries. It's a sort of vague claim, but essentially the law allows beneficiaries to collect compensation for services the decedent provided the beneficiaries.



BOOKS FOR GRIEVING FAMILIES

While we understand that literature is no substitute for human contact after the loss of a child, we have compiled a list of books on the grieving process that can help explain some of the emotions you are dealing with.

This Thing Called Grief: New Understandings of Loss by Thomas Ellis

When Bad Things Happen to Good People by Harold Kusner

Lessons of Loss: A Guide to Coping by Robert A. Neimeyer

The Bereaved Parent by Harriet Sarnoff Schiff

Who Dies? by Stephen and Ondrea Levine

On Death and Dying by Dr. Elizabeth Kubler-Ross

Awakening from Grief: Finding the Road Back to Joy by John E. Wishons


If you or someone you know has a child who has been injured in an Ohio child accident, you need information. Contact our Ohio child accident injury lawyers immediately for your free copy of Little Kids, Big Accidents by calling 800.637.8170.


We represent Ohio personal injury clients from Toledo, Maumee, Delta, Port Clinton, Bowling Green, McClure, Napoleon, Helena, Fremont, Fostoria, Tiffin, Cygnet, North Baltimore, Ottawa, Findlay, Carey, Bryan, Sandusky, Swanton, Perrysburg, Grand Rapids, Waterville, Liberty Center, Portage, West Millgrove, Woodville, Genoa, Gibsonburg, Findlay, Risingsun, Deshler, Hamler, Oregon, Sylvania, Delta, Weston, Oak Harbor, Port Clinton, Clyde, Lorain, Ottawa Hills, Rossford, Millbury, Walbridge, Holland, Northwood, and Whitehouse. We also serve those who live in Lucas, Wood, Seneca, Lorain, Fulton, Erie, Hancock, and Sandusky Counties. Bookmark and Share
Bookmark and Share

©2010 Charles Boyk Law Offices, LLC, All Rights Reserved, Reproduced with Permission
Attorney website design by Foster Web Marketing, the best attorney website design solution on the Web offering search engine optimization for attorneys, lawyer website design, video for attorneys, and more.
Get SEO Tips from The Attorney Internet Marketing Blog

Served By: A