A wrongful death is a death caused by the negligent, reckless or willful acts of another. A wrongful death can arise out of virtually any type of wrongful act, such as car or truck accidents, dangerous conditions on land, workplace injuries, nursing home negligence or defective products. Responsible Parties to a Wrongful Death Claim Can Include:

A wrongful death is a death caused by the negligent, reckless or willful acts of another. A wrongful death can arise out of virtually any type of wrongful act, such as car or truck accidents, dangerous conditions on land, workplace injuries, nursing home negligence or defective products.

Responsible Parties to a Wrongful Death Claim Can Include:

  • Employers of drivers who cause the accident
  • Actual driver causing the accident
  • Designers and Builders
  • Government Agents
  • Bar and/or owner of premises who served an impaired driver
  • Manufacturer
  • Distributors
  • Installers

Our attorneys have extensive, practical experience representing grieving family members in a variety of wrongful death cases. If you have questions about the death of a loved one, contact our Missouri and Kansas Wrongful Death Attorneys at  816-866-7711 for a complimentary consultation.

The law varies between states, even border sharing states such as Kansas and Missouri can have different laws surrounding wrongful death damages. The numerous pros and cons of where a case is filed can have a profound effect on the outcome, therefore it is important to discuss your case with an experienced attorney before assuming where a claim can or should be filed.

Click Here to Learn More About Wrongful Death in Missouri

Click Here to Learn More About Wrongful Death in Kansas

What is “Wrongful Death” in Missouri

Wrongful death as an action is available when a circumstance or event has the tragic result of ending in an individual’s death; but if the individual had survived, they would have been able to bring a claim for damages. Mo. Rev. Stat. 537.080
Who Can File?

There are three categories of people, ranked Category 1, Category 2 and Category 3, that can bring a wrongful death suit in Missouri. This is a tiered ranking system, for example:  one is only able to sue under Category 2 if he/she does not meet the requirements of Category 1, etc.

Category 1 Defined

Category 1 includes the current spouse, either parent, natural or adopted children (Mo. Rev. Stat. 537.080(1), or the descendants of deceased children.

Category 2 Defined

If no one exists in Category 1 that can bring the wrongful death claim, then individuals in Category 2 may be able to file the suit. The siblings of the deceased or the siblings’ descendants.

Category 3 Defined 

If no one from Category 1 or 2 is available to bring the action, the judge may appoint a “plaintiff ad litem,” who is someone appointed by the court upon the request individuals who may be legal heirs of the deceased because the proceeds of a wrongful death action are not subject to probate administration.

Multiple Plaintiffs

Any person who properly falls in one of the Categories can join in the suit (“intervene”) at any time.

Personal Representative-Survival Action

A personal representative of the deceased cannot bring a wrongful death action, but can bring a survival action.  Mo. Rev. Stat. 537.020

Missouri Wrongful Death Claim | What Damages Are Available?
Referring to Missouri statute 537.090, wrongful death damages available can include:

  • Funeral expenses
  • Pecuniary losses suffered due to the death
  • Damages suffered by the deceased between time of injury and time of death
  • Reasonable value of:
    • services
    • consortium,
    • companionship,
    • comfort,
    • instruction,
    • guidance,
    • counsel,
    • training, and
    • support

Unfortunately, damages for “grief and bereavement due to death” do not currently provide a valid basis for damages.

Damages Claim Limits in Missouri

No limits exist on actual damages, however there is an exception in the case of statutory medical malpractice. Missouri statute 538.210

How to Calculate Damages in Wrongful Death Claims

In determining the amount of damages to award the plaintiff, some relevant considerations include the deceased’s health, life expectancy, talents, age, habits, character, and earning capacity. Missouri statutes provide formulas to help determine damages in certain specific circumstances. Mo. Rev. Stat. 537.090

What if the Deceased was not Employed Full-Time?

If he/she was, at a minimum, 50% responsible for caring for children, disabled or elderly adults: then the value of care provided is generally equal to 110% of the state average weekly wage. Mo. Rev. Stat. 287.250

What if the Deceased was Under Eighteen?

In these cases, damages are calculated based on the income of the parent or parents.

Are Punitive Damage Available in Wrongful Death Claims?

Even though they are not directly labeled as “punitive damages”, there may be “aggravating circumstances” which generally have similar effect as punitive.

What Are the Limitations On Missouri Wrongful Death Claims?
Missouri sets the statute of limitations for wrongful death within three (3) years. Mo. Rev. Stat. 537.100

Only one action may be brought against any one defendant for the death of any one person. Furthermore, the same person cannot be sued more than once for the death of one person. Mo. Rev. Stat. 537.080(2)

What is “Wrongful Death” in Kansas

The Kansas Wrongful Death Statute is located at K.S.A. 60-1901

In Kansas, it is the claim the individual who passed could have brought for damages had he/she survived. Necessary elements to establish a case include: a) death of a person which is b) caused by the “wrongful act or omission of another.” KSA 60-1901,

Who Can Bring The Wrongful Death Suit? 
Includes any heir or heirs who have suffered a loss resulting from the death are qualified to file the wrongful death suit KSA 60-1902

The definition of “heir” is: one who would receive property from an individual at their death due to their specific relationship. Potential heirs may include the spouse, mother/ father, grandmother/grandfather and surviving children. Note, if parental rights are removed, this would end the right of any children to bring a wrongful death action upon his/her death.

Who Can Be Sued For?

Unborn Children
Under Kansas law, an individual for whom one can sue includes unborn children. Kansas statute does not require that the fetus be viable outside the womb. It includes a fetus in any stage- from fertilization to birth. KSA 60-1901(b)-(c),  However, if the death of the unborn child was as a result of the mother’s actions or any form of legal abortion, there is no wrongful death action available upon the death of the fetus. KSA 60-1901(d)

Damages Available for a Wrongful Death Claim in Kansas?

Non-economic damages are capped at $250,000 in a wrongful death case. The verdict reflects amounts awarded for:

  • non-pecuniary damages;
  • care expenses for the deceased that were incurred due to the injury;
  • lost income S.A. 60-1903(a),

Typical Damage Elements for Wrongful Death Claims:
(1) mental suffering and anguish, including bereavement;
(2) loss of companionship
(3) loss of marital support
(4) loss of parental guidance
(6) funeral and other reasonable expenses KSA 60-1904,

“Can I get Punitive Damages?”

Punitive damages are not available in wrongful death claims. However, they may be recovered in a survival action.  The estate may bring a survival action for damages arising out of defendant’s negligence.

Statute of Limitations For Kansas Wrongful Death Claims
The statute of limitations for wrongful death actions is two years from the date of death KSA 60-513(a)(5)

Smith Mohlman Injury LawIn Kansas, an estate must be opened to pursue a wrongful death claim. The period in which to open an estate may be as short as one (1) year.

If your loved one has died as a result of an accident or negligence and you have more questions, please contact our Missouri and Kansas Wrongful Death attorneys at 816-866-7711 or directly through the Contact Us form for a free consultation.

 

Phone: 816-866-7711
Fax: 816-994-5041

4600 Madison Ave., Suite 711 Kansas City, Missouri 64112