Civil Litigation
Wrongful death

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A wrongful death occurs when your loved one passes away because of the wrongful action or inaction of someone else. Your loved one may be your parent, spouse, child, or even an unborn child in gestation. The individual or party who caused or contributed to the death could be a government, a government employee, a corporation, a corporate worker, a company, or a natural person. In some situations, your loved one may suffer grave injuries that do not immediate result in death, but instead pain and suffering in the ensuing years.

Generally speaking, Nebraska law under Nebraska Revised Statute § 30-810 requires a lawsuit be filed within two years after the death. Waiting to take legal action beyond this two-year period introduces risk that the lawsuit will be barred or thrown out and therefore prevent recovery of money or damages that may be owed.
 

Who Can Bring A Wrongful Death Lawsuit?
 

• Nebraska law requires that a person be appointed to represent the deceased person’s estate, who is therefore authorized to essentially act on behalf of the deceased. That representative can file lawsuit against the wrongdoer.  Depending on who the wrongdoer is, there may be different applicable laws and procedures on how to file a lawsuit.
   

• In the event the person suffers injury and survives, the person himself/herself can bring a lawsuit against the wrongdoer.  Thus, your employer or your friend may not file a wrongful death lawsuit on your behalf unless they have been appointed as the personal representative of the estate. Circumstances in which the injured person survives, but is incapacitated or otherwise unable to represent their own interests may require separate legal proceedings, such as guardianship, conservatorship, power of attorney, etc.

 

Who Can Be the Representative of the Deceased Estate?
 

• Not any person can file a lawsuit for wrongful death. Nebraska law, under Nebraska Revised Statute § 30-810, requires that the lawsuit must be brought by and in the name of the personal representative for the exclusive benefit of the widow or widower and next of kin. The probate court can appoint a personal representative or special administrator for the estate to represent the immediate family of the deceased. The next of kin may nominate an individual as the personal representative in a probate court. The next of kin may also nominate himself/herself/themselves as personal representative(s) of the estate. The personal representative may need to be bonded before the appointment if the court deems it necessary, in order to ensure that they carry out their duties as representative in an appropriate and responsible manner.

 

What Damages May Be Included Or Recovered?
 

• Only monetary damage may be recovered. There is no earthly court that can restore your loved one to life, or mend the suffering that is felt in their absence. Although the calculation of what a life is worth seems like an impossible task, monetary compensation is the only tool in the court’s toolbox for trying to find justice in a tragic situation. In calculating the loss, the court may take into account mental suffering, loss of society, comfort, and companionship, medical and funeral expenses. The specific facts of how a person was employed, what their family unit looked like, and a host of other factors may affect the amount of damages that a court is likely to award in a case. Even in two cases where the death, fault, and all aspects of the actual wrongdoing are identical, the factors outside of those considerations may lead to quite different damage results. An attorney experienced in wrongful death actions should be able to help you identify what the range of realistic outcomes may look like in your particular case. Below are some rulings on types of damages you may recover.
   

  • Action for damages commenced by administrator after death of his intestate, for pain and suffering inflicted upon the deceased is maintainable. Wilfong v. Omaha & C. B. St. Ry. Co., 129 Neb. 600, 262 N.W. 537 (1935).
     

  • On death of a child, a parent may recover for the loss of expected services not only during minority, but afterwards, on evidence justifying a reasonable expectation of pecuniary benefit. Draper v. Tucker, 69 Neb. 434, 95 N.W. 1026 (1903)
     

  • The next of kin may recover in a wrongful death action only those losses sustained after the injured party's death by reason of being deprived of what the next of kin would have received from the injured party from the date of his or her death, had he or she lived out a full life expectancy. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

  • In an action for the wrongful death of a child of majority age, damages may be recovered for loss of contributions that might reasonably be expected to be made by that child, and for the loss of society, comfort, and companionship of the child..." Crewdson v. Burlington Northern R. Co., 452 N.W.2d 270, 234 Neb. 631 (Neb. 1990)
     

  • Damages are measured by pecuniary loss sustained by survivors by being deprived of what they would have received from the earnings of injured party had he lived out his expectancy. Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922).

 

• In other words, you may sue for damages that may include loss of earnings, expected services, pecuniary benefit, pain and suffering, mental suffering, loss of society, medical and funeral expenses. There are no clear rules as to what dollar figure you can put on these categories of damages. They may depend on the circumstances of the case, your attorney’s experience, who the wrongdoer is, if there is contributory negligence, age, employment history, family history, medical history, and life expectancy of the deceased, whether the deceased has minor child(ren), and more.

 

Is There A Maximum Damage That I Can Recover?
 

• It depends. In some cases, if the wrongdoer is a government, there may be a maximum amount of damage you can recover.  Nebraska law, under Nebraska Revised Statute § 44-2825, says that if you are suing against a health care provider for any injuries or deaths, the total amount recoverable is to not exceed two million two hundred fifty thousand dollars ($2,250,000.00), if the wrongful action happened after December 31, 2014.  Nebraska law, under Nebraska Revised Statute § 13-926, says that if you are suing against a political subdivision for wrongful death, the total amount recoverable is (1) one million ($1,000,000.00) for any person for any number of claims arising out of a single occurrence; and (2) five million dollars ($5,000,000.00) for all claims arising out of a single occurrence.
   

• Nebraska does not allow for punitive damages. In other words, monetary damages to punish the wrongdoer is not allowed in Nebraska. The measure of recovery in all civil cases is compensation for the injury sustained. Abel v. Conover, 170 Neb. 926. There is no general cap on compensatory damages if the wrongdoer is not the government or heath provider.
   

What if My Loved One Was Injured, but Not Killed?

• In cases where a person was injured, but not immediately killed, there may still be legal grounds to recover damages for that injury. However, an incident not resulting in death will not be considered a wrongful death action and may fall under a different legal analysis than what is discussed here, including different filing deadlines, recovery bases and limitations, etc.
   

• If an injury later leads to the death of that injured person, it may be possible to establish more than one distinct legal claims against the wrongdoer, including for pain and suffering experienced before their death.

 

What Is Contributory Negligence?
 

• In a wrongful death action, one common defense that may be raised is an argument of contributory negligence. The gist of the argument is that the injury or death is caused by multiple individuals’ wrongful action or negligence; thus, the fault and any claim for damages should be spread among all the wrongdoers. Importantly, this can include the deceased. If a court determines that the deceased is partially responsible for their own death, any recovery will be reduced by the amount that they are responsible. Nebraska law 25-21,185.09 states (1) any contributory negligence done by the injured or decease will reduce proportionately the damage awarded, and (2) if the contributory negligence or fault of the injured or deceased is over fifty percent (50%), the injured or deceased is barred from any recovery.

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What if the Wrongdoer Is a Governmental Branch, or a Government Employee?
 

• Schools, cities, public power districts, colleges, or their employees could be the wrongdoers. If a local government employee drove a car during work for the purpose of work and accidentally struck and killed someone, the local government may be a defendant. Special rules applies when the wrongdoer is a local government employee. Under the Political Subdivisions Tort Claims Act, in order to recover anything, you must follow the proper procedures listed out in the Political Subdivisions Tort Claims Act. There is also a distinct time limit on when you must file your claim. It is important to speak with an attorney early in the process so that you can be aware of these time limits and make sure that you comply with any filing, demand, notice, or other administrative requirements.
   

Call to Schedule a Free Consultation for Wrongful Death.

• Please contact Li Law Group at 402-391-2486 (here)  and fill out an intake to schedule a free consultation about  wrongful death.

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The information above is for education and marketing purposes only. In no way it is intended to provide legal advice or create a client-attorney relationship. Should you have a question regarding the content or your situation, please contact a lawyer.

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