Recently, a two-month-old infant was killed in an automobile accident in Murfreesboro, Tennessee when the baby’s driver rear ended a dump truck as it slowed for traffic. Facing the tragic death of a child is an overwhelming life event. Many times, when the reality is coupled with the knowledge that it was the negligence of another, it can lead to feelings of frustration, guilt, and blame. It is critical during this time that an experienced wrongful death attorney help navigate a mourning family through the challenges faced in a wrongful death claim.
According to Tennessee’s wrongful death laws, when a child’s death is caused by the negligence of another, a claim can be brought for damages. The surviving guardians or personal representative of the child’s estate may pursue both economic and non-economic damages. Economic damages typically consist of medical bills from the time of the injury until death and funeral costs. Non-economic damages consist of intangibles that cannot be objectively measured such as pain and suffering and loss of consortium.
Consortium is a legal term that describes non-economic damages sustained by the loss of a loved one, including the loss of companionship, love and affection, and the like. In Tennessee, parents can pursue a claim for loss of consortium for the wrongful death of a child. However, it is important to note that a family is limited to one (1) consortium claim, which more or less will encompass the non-economic losses of all surviving Plaintiffs in a wrongful death claim. It is important to note that the Tennessee state legislature enacted a statutory “cap” effectively placing a ceiling on damages for non-economic damages in the amount of $750,000, unless certain exceptions apply. Under Tennessee law, the damages cap may not apply if a defendant, such as a trucking company, falsified or concealed records or if the at-fault driver was under the influence of drugs or alcohol at the time of the wreck. No such “cap” exists for economic damages.
A problem that is frequently presented in the prosecution of a child’s wrongful death claim is the determination of the proper party to bring the claim on behalf of the estate. This is often referred to as legal standing, which means that a party (typically a parent) has demonstrated to a Court a sufficient connection to the matter in controversy to establish that harm was suffered by the party that only the Court can grant relief. Typically parents can bring a wrongful death claim on behalf of a minor child. However, Tennessee Code Annotated § 20-5-107(c) established that any parent who has refused or neglected to pay support or exercise visitation in accordance with a Court order during the life of the child or two years, whichever is less, shall not be allowed to recover in a child’s wrongful death claim.
To establish the legal standing of a party in a wrongful death claim, one may proceed through the probate process. A petition is typically filed with a probate court and a personal representative (usually a surviving parent) is appointed either by a judge or the Clerk of the Court (this varies from county to county) to stand in the place of the deceased child. The personal representative will for all intents and purposes serve as the legal representative or face of the wrongful death suit. As in all legal claims, there is a strict time limitation to either properly settle or file a lawsuit on a wrongful death claim. This is commonly referred to as the statute of limitations. Failure to adhere to the time limitation will result in a party’s failure to recover forever.
While nobody ever wants to be faced with the tragic loss of a loved one, particularly a young child, it is important that they choose an advocate, such as the Tennessee wrongful death lawyers at Nahon, Saharovich & Trotz, who will vigorously protect their legal rights and provide a compassionate ear and voice in the prosecution of their wrongful death personal injury claim. If you have been injured in a truck accident in the Nashville area, call us today at 1-800-LAW-4004.