When Can’t You File a Wrongful Death Claim?

It has often been said that “death is a part of life,” and certainly everyone eventually passes away. But the phrase also suggests that dealing with death, whether our own or that of a loved one, is a part of our life journey. For those who lose a loved one too early, the journey can be painful. When the loss results from the unnecessary negligent or intentional acts of another, the loss can be excruciatingly painful. Society seeks to limit these needless deaths through a legal framework designed to hold the wrongdoers accountable for their actions. In this article we will discuss wrongful death claims, and examine some circumstances when a wrongful death lawsuit is not appropriate.

Wrongful Death Basics

Wrongful death laws permit civil lawsuits for monetary recovery, and vary from State to State. Oregon’s wrongful death statutes are codified at 2015 Oregon Revised Statutes Sections 30.010 through 30.100. Oregon law authorizes a wrongful death action when a person’s death results from the wrongful act or omission of another person. The action must be brought by the personal representative of the decedent’s estate for the benefit of the appropriate survivors. Sometimes it is simple to determine who is permitted to recover, and sometimes it can be more difficult.

When Could a Person Be Limited in Filing a Wrongful Death Action?

Below, we will discuss a few circumstances in which a wrongful death claim would not or might not be warranted. Some circumstances are complicated, and you should always consult with an attorney.

  • Lack of statutorily-required relationship – sometimes people and families have complicated relationships, which may even be in a state of flux. For example, a person may be married, but seeking a divorce. Parents may have adopted a child or a step-parent may be adopting a step-child. The timing of such events affects who has the right to recover in a wrongful death action and these relationships must be carefully evaluated.
  • Governmental wrongdoers – under the Oregon Tort Claims Act, there are limitations on which governmental entities can be sued and the amount that can be recovered. There are also a number of exceptions to the rules, and procedural hurdles which must be cleared. Nevertheless, when handled correctly, it is often possible to pursue a claim against the government.
  • Lack of third-party liability – all accidents resulting in death are tragic, but some do not support a wrongful death lawsuit. The key is that a third party must have wrongfully caused the death. Thus, if it is determined that the deceased person caused his or her own accident, or that no one acted wrongfully, a third person could not be sued. However, making a determination of fault can be extremely tricky and may require a great deal of investigation. Let’s take a look at a few examples in different contexts.       
  • Automobile accident. Assume a drunk driver passes out while driving, runs off the road, hits a tree, and dies. The driver’s personal representative cannot blame a third-party driver for causing the accident. However, what if a bar kept serving the person alcohol after he was known to be intoxicated? Further investigation would be warranted. Now assume that a passenger automobile collides with a semi-truck in an intersection and the automobile driver is killed. The conduct of both drivers must be carefully examined. Even if both parties were partly negligent, a wrongful death action may be warranted.
  • Medical malpractice – What if someone dies during surgery? Again, the cause of the death must be determined, as well as whether there was wrongful conduct. If the medical personnel met the appropriate standard of care, the conduct would not be considered wrongful, even though death occurred. However, if the standard of care was not met, a wrongful death action would be warranted.

Note on spousal immunity – in Oregon, spousal immunity once prevented a deceased spouse’s personal representative from suing the living spouse, even when the living spouse wrongfully caused the deceased’s spouse’s death. This rule has now been overruled, allowing interspousal lawsuits.

Contact with Questions

Some wrongful death cases are clear. Others can be complicated and require careful investigation and analysis. Regardless, by working together to hold everyone accountable for wrongdoing, we protect all of society. If your loved one has died, please feel free to contact the experienced lawyers at Nelson MacNeil Rayfield with your questions. We will also be happy to help you with your investigation. 


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