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Lawyers in Wisconsin
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We Represent Family Members Seeking Civil Justice
It does not take much for an accident to turn deadly. A moment of carelessness by a driver can lead to a fatal car crash. A customer shopping at the store can slip and fall and sustain a blow to the head that kills them. A nursing home patient may pass away as the result of the facility’s abuse or neglect.
When someone is harmed by the negligence of others, they can file a personal injury lawsuit to recover monetary damages as compensation; however, the dead cannot sue. Rather, it is left to their estate and surviving family members to take legal action on their behalf. At Fitzpatrick, Skemp & Butler, LLC, we are Wisconsin wrongful death attorneys who can advise you if you have recently lost a family member in these kinds of circumstances. We understand this is a traumatic time for you and your family, we will make every effort to obtain appropriate compensation so that you can begin the healing process.
How Wrongful Death Claims Work
Wisconsin law defines wrongful death as any death “caused by a wrongful act, neglect, or default.” Any cause that would have allowed the victim to file a personal injury claim had they survived may form the basis of a wrongful death lawsuit. This definition makes clear, wrongful death is not limited to deaths caused by accidents or negligence. It also includes intentional–i.e., criminal–acts such as murder or manslaughter.
Some other common types of wrongful death claims in Wisconsin include:
● Auto Accidents
● Bicycle Accidents
● Dog Bites & Animal Attacks
● Medical Malpractice
● Pedestrian Accidents
● Nursing Home Abuse & Neglect
● Slip and Fall Accidents
Because wrongful death is a civil matter in Wisconsin, the burden of proof is by a “preponderance of the evidence” rather than “beyond a reasonable doubt,” the latter being the standard in criminal prosecutions. This is a critical difference. It means that the families of a wrongful death victim do not have to prove that a defendant’s actions rose to the level of a deliberate or criminal act. It is enough to show the defendant engaged in conduct that was reckless, negligent, or simply showed indifference to the safety of others.
Since wrongful death cases are part of the civil justice system, they do not implicate any “double jeopardy” rights the defendant may have concern a criminal prosecution. To put it another way, you can still file a wrongful death lawsuit against someone even if they were already tried and acquitted in a criminal case arising from the same fatality. For that matter, you can bring a wrongful death claim against someone even if they were never criminally investigated or charged.
Who Can File a Wrongful Death Claim?
In Wisconsin, the only parties that have the legal right to file a wrongful death lawsuit are the personal representative of the victim’s estate or the person “to whom the amount recovered belongs”–that is to say, the beneficiaries of the wrongful death claim.
If the victim has a surviving spouse or domestic partner, they have the priority to bring a lawsuit. If the deceased had no spouse or partner, then the order of priority to serve as a wrongful death plaintiff goes as follows:
- the children or grandchildren of the deceased;
- the parents of the deceased;
- the grandparents of the deceased; and
- the siblings of the deceased.
It is also important to note that if there is a surviving spouse or domestic partner and any minor children who survived the victim, a Wisconsin court is legally required to set aside a portion of any wrongful death award for the benefit of those minor children. There is no one-size-fits-all approach to such set-asides. The statute requires the court to look at a variety of factors, including the ages of the minor children, the amount of money involved, and the “capacity or integrity” of the surviving spouse or partner. In any case, the set-aside amount cannot be more than 50 percent of the amount of the wrongful death award less certain expenses.
What Damages Are Available in a Wrongful Death Case?
Again, it is important to emphasize that wrongful death is a civil matter. The goal is not to impose any sort of criminal sanction on the defendant, such as prison, even if the actions that led to the victim’s death were intentional or constituted a crime under Wisconsin law. Instead, a wrongful death case aims to recover monetary damages for the estate and the next-of-kin entitled to compensation under the law.
Some of the more common damages we obtain for our clients in these cases include:
- The victim’s final medical expenses arising from the defendant’s wrongful acts.
- The costs of the victim’s funeral, burial, or cremation.
- Compensation to account for the loss of the victim’s financial support, i.e., the wages and other income they would have earned up through their retirement had they continued to live and work normally.
- Compensation for the loss of the victim’s “society and companionship.”
Concerning this last category–loss of society and companionship–Wisconsin law does impose certain limitations. Under current state law, a court cannot award more than $500,000 in such damages if the victim was a minor (a child under the age of 18) or $350,000 if they were an adult at the time of death. In addition, punitive damages are not available in Wisconsin wrongful death lawsuits.
Wrongful Death and Survival Claims
In some Wisconsin wrongful death cases, the personal representative of the victim’s estate may also have standing to bring what is called a survival claim. A survival claim is meant to obtain compensation for the victim’s losses between the date of their injury and the date of their death. This may include any or all of the following:
- The victim’s medical bills incurred between the injury and their death.
- The victim’s lost income incurred between the injury and their death.
- Non-economic damages to compensate the victim for their pain and suffering, emotional distress, and loss of quality of life between the injury and their death.
Unlike the caps on compensation for the family’s loss of society and companionship in a wrongful death claim, there is no limit on the amount of non-economic damages that may be awarded in a survival claim.
How Long Do You Have to File a Wrongful Death Claim?
Civil lawsuits have a statute of limitations. This is a legal deadline for filing a lawsuit in court. It does not mean you have to complete or settle the case within that deadline; however, you must file your claim before the limitation period expires. Otherwise, a judge is usually barred from even allowing your case to proceed any further.
The statute of limitations for wrongful death claims in Wisconsin is complicated. If the wrongful death was the result of a car accident or was the result of any other kind of negligence or wrongful act, the statute of limitations is two years.
With few exceptions, the “clock” starts to run on the statute of limitations on the date of the accident or injury that caused the victim’s death.
Speak with a Wisconsin Wrongful Death Attorney Today
The last thing on many family members’ minds following a sudden death is the need to call a lawyer or think about filing a wrongful death lawsuit; but given the relatively short timeframe to bring such claims, and the potential complexity of proving a defendant’s responsibility for the victim’s death, it is important to engage a qualified Wisconsin wrongful death lawyer as soon as possible.
Remember, even if you are 100 percent convinced that someone caused your loved one’s death, you still need to prove it in court, and building a case takes time and legal expertise. Ideally, by working with a qualified attorney, you can build a case strong enough to compel the defendant their insurance company, to settle rather than take their chances with a jury.
At Fitzpatrick, Skemp & Butler, LLC, we know this process intimately. We have taken cases to trial and won judgments against the defendant and we have obtained substantial settlements in other cases before they proceed to trial. The bottom line is that it is our job to obtain results for you and your family.
If you are worried about the potential costs of a wrongful death lawsuit, please note that we never charge our clients any fees unless we win. There is also no obligation or commitment involved in simply sitting down with us so we can learn more about your case. If you would like to schedule a free consultation, contact us today. We proudly serve clients in La Crosse, Onalaska, Eau Claire, and other parts of both Wisconsin and Minnesota.
Attorney William SkempMelissa, Source: Avvo
"Mr. Skemp was so thorough in handling my case.
He was literally the junk yard dog I was hoping to hire and fought for me the whole way. Even when I felt like giving in. His staff is so helpful and kind as well. "
Attorney David FitzpatrickGeorge, Source: Google
"If you been denied SSI, call them they will fight for you and pay nothing unless they win."
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Attorney SCOTT BUTLERAbby, Source: Google
"We hired Attorney Scott Butler after a motor vehicle accident. Immediately a weight was lifted off our shoulders, as he handled everything with the insurance companies, medical paperwork, etc so that we could focus on healing and getting on with life. He is highly attentive, kind and genuine. His communication is fabulous-frequently reaching out just to check on us, prompt in returning calls/emails. Couldn't have had a better experience with our case. My family would highly recommend Scott Butler to anyone."