Ohio Wrongful Death Book

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From the Toledo wrongful death lawyers at the Charles Boyk Law Offices, a complete guide for the families of those who've died in any type of accident or due to the negligence of another person.


<p>The Ohio Wrongful Death BookA RAY OF HOPE DURING A TIME OF TRAGEDY</p> <p>Charles E. Boyk Law Offices, LLC405 Madison Ave., Suite 1200, Toledo, OH 43604We also have offices in West Toledo, South Toledo, Findlay, Bowling Green, and Swanton. www.charlesboyk-law.com</p> <p>Copyright 2008 by Charles E. Boyk, Michael A. Bruno, and Dale R. Emch.</p> <p>All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author(s).</p> <p>Printed in the United States of America.</p> <p>ISBN 978-0-615-25073-1</p> <p>Charles E. Boyk Law Offices, LLC 405 Madison Avenue, Suite 1200 Toledo, Ohio 43604 www.charlesboyk-law.com</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>A family members passing causes tremendous pain, but the emotional and financial fallout of a death caused by anothers negligence can be devastating. We hope you havent picked up this book because youve lost a loved one through traumatic circumstances. If that is the case, were sorry for your loss. We hope this book provides an overview of wrongful death cases that allows people having to navigate these difficult waters to make informed and educated decisions before ever talking to a lawyer. Wrongful death cases are inherently complicated, involving everything from probate matters to negligence issues. These types of cases are often made more difficult because insurance companies representing the wrongdoer often try to avoid liability or offer unfair or inadequate compensation. Most people have never been through this process and, understandably, dont understand what theyre up against when they decide to pursue a wrongful death claim. Those who havent been involved in a wrongful death case usually expect that an insurance company will pay off medical bills and compensate them for the loss of their loved one. But for many the nightmare is just beginning. The pain caused by the accident can be compounded by the unfair treatment the victim receives from some insurance companies that have one objective closing the file for as little money as possible without fair compensation for the injured. In short, insurance companies have teams of adjusters and lawyers that they can put to work on defend1</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>ing such claims. Theyre professionals they handle claims involving death and serious injuries all day and every day. Naturally, they have an advantage over most people who are encountering these issues for the first time. In our office, we believe knowledge is power. We think this book will be helpful in leveling the playing field between insurance companies and those who have lost loved ones as a result of someones wrongful acts. If youre reading the book and you find you have some questions, the lawyers in our office would be happy to answer them. Just call 419-241-1395 or 800-637-8170. You can also visit our Web site at www.charlesboyklaw.com. WE CAN HELP YOU Our office has been representing families who have suffered the tragic loss of a loved one for the past 25 years. We take a comprehensive approach to the wrongful death cases we handle. We believe that our job is to: 1. Provide family members with all their legal options along with our analysis about how the case should be approached.. 2. Develop strategies to maximize the recovery for grieving family members who may find themselves struggling financially. 3. Take charge of the situation and solve problems as quickly and easily as possible.2</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>4. Recommend grief counseling and help connect families with the resources theyll need to cope with their loss. Over the years we have represented families in wrongful death cases arising from among the following situations: Car accidents Truck accidents Motorcycle accidents Medical malpractice Construction or workplace accidents Nursing home negligence Airplane crashes Prescription drug reactions Shootings Assaults The authors of this book have more than 50 years of combined legal experience. Chuck Boyk has been in private practice for 25 years and heads the Charles E. Boyk Law Offices, LLC. During his career, he has handled numerous wrongful death claims for family members who have lost loved ones. He also has a thriving personal injury practice. He has conducted numerous seminars for other attorneys to help them understand the world of personal injury law. In addition to his personal injury work, Chuck has represented thousands of criminal defendants, handling anything from routine traffic offenses to murder cases.3</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>Mike Bruno also has been practicing law for 25 years. Mike, who has been named an Ohio Super Lawyer, has a unique background that benefits our clients. As an assistant Lucas County prosecutor, he handled thousands of felony cases, including death penalty murder cases. As an insurance defense attorney, he handled serious personal injury cases representing insurance companies. That experience has provided him with invaluable insight into how insurance companies will view our cases. Mike has handled more than 100 jury trials, is Board Certified by the National Board of Trial Advocacy, and is AV rated by Martindale Hubbell, the highest rating an attorney can receive. Dale Emch focuses his practice on personal injury cases, but also handles criminal cases ranging from felonies to traffic offenses. He graduated cum laude from the University of Toledo College of Law, where he was an associate member and note and comment editor of Law Review. Dale writes a column for the Toledo Blade called Legal Briefs, in which he answers readers questions about a variety of legal issues. He is a member of the Toledo Bar Association, the Lucas County Bar Association, the Ohio Academy of Trial Lawyers, and the Association of Trial Lawyers of America. He serves on the Lucas County Public Defender Commission and the Media Relations Board for the Toledo Bar Association. Our attorneys varied experience gives us a unique perspective on the cases we handle, benefits the4</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>families of those who have lost a loved one, and helps maximize their recovery. Understanding the way each party will analyze the case gives us an added advantage we can pass on to our clients. THIS BOOK DOES NOT OFFER LEGAL ADVICE Were happy that youve taken time to read our book. You should note, however, that ordering or reading our book does not create an attorney-client relationship. We also arent offering a legal opinion in these pages because every case is different based on the facts of the situation. If you want our legal opinion, please contact us at 800-637-8170 or 419-241-1395. Well be happy to set up a free meeting with you. WRONGFUL DEATH CLAIMS CONTROLLED BY STATUTE Wrongful death claims are mostly controlled by Ohio Revised Code 2125.01, 2125.02, and 2125.03. Those code sections come from the states probate laws. The law allows the executor or administrator of the deceased persons estate to bring a claim against the person or entity whose negligent conduct or wrongful act caused the decedents death. A case can be brought if the decedent could have maintained a claim for negligence or wrongful conduct had the death not occurred. That means the executor would need to show that the other party acted in a negligent or wrongful way and that conduct caused the death. Wrongful death cases can be brought for negligent acts5</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>such as car accidents and medical malpractice or criminal acts like murder and manslaughter. To prove the case in a negligence context, the executor must show that the defendant owed a duty of care to the decedent; that duty of care was breached; the breach caused the decedents injuries and death; and that the decedents estate and beneficiaries suffered damages. The case must be proven by a standard called preponderance of the evidence, which roughly means that the evidence must tilt more in the favor of the executor than the defendant. Attorneys often explain the standard by telling jurors they just need to prove their case by 51 percent, which is well short of the reasonable doubt standard that weve all seen in television dramas depicting criminal trials. TIME TO FILE LAWSUIT IS LIMITED Generally, the statute of limitations on a wrongful death claim is two years, which means if a lawsuit has to be filed, it must be filed within two years of the decedents death. Its extremely important to keep track of this date. If the two-year period lapses, a claim will be barred forever. The idea behind a statute of limitations is that crucial evidence that someone needs to defend such a lawsuit could be lost or destroyed if too much time passes. If the decedents death was caused by a defective product, generally the product cant have been delivered to the first purchaser more than 10 years prior to the6</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>death. RELATIVES ARE BENEFICIARIES Under state law, wrongful death suits are brought in the name of the executor of the decedents estate in the name of various beneficiaries. A beneficiary is someone who is entitled to financial compensation should the case be proven. In Ohio, the beneficiaries are relatives of the decedents, such as the decedents surviving spouse, children, parents, and siblings. A parent who a court determines had abandoned a minor child may not be a beneficiary in a wrongful death claim should the child die. The probate court judge determines how a settlement or award is to be distributed among the potential beneficiaries based on the relationship to the decedent and the degree of loss to the beneficiary. For instance, if the decedent was the breadwinner in the family, the surviving spouse and children would be given more money than a sibling of the decedent. If all the beneficiaries are at the same level in the laws eyes for instance a group of siblings they can decide among themselves how to divide up the money and ask the court for approval. Beneficiaries under 25 years old can be treated differently by the Court in order to protect their interests. The Court can create a trust for beneficiaries under 25 and order that the money be held in trust until the beneficiary turns 25 or that it be distributed in accordance with the terms of the trust.7</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>DAMAGES AVAILABLE TO BENEFICIARIES Though it is little consolation to people who have lost a loved one, the way our court system compensates the beneficiaries of a decedent is by awarding money. Damages the term used to refer to the various reasons for which financial compensation can be awarded are available for the estate for the damages of the decedent and to the beneficiaries. The estate of the decedent can be compensated for the medical bills incurred to treat the decedent prior to death and for the pain and suffering the decedent experienced as a result of the accident or wrongdoing. Under state law, the following damages are available to the beneficiaries: Loss of support This refers to the lost earning capacity of the decedent had he or she not died. The factors taken into consideration for loss of support would be the salary at the time of the decedents death as well as the amount of money the decedent reasonably could have been expected to earn in the future had the death not occurred. Charts called life tables are used to calculate how long the decedent would have been expected to live based on such factors as age at the time of death, gender, and race. Loss of services Damages for loss of services are available to beneficiaries. Its a sort of vague claim, but essentially the law allows beneficiaries to collect compensation for services the decedent provided the8</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>beneficiaries. For example, assume Betty was killed as the result of someones negligence. If Betty provided daycare for her daughter Leslies children, Leslie could seek compensation for the money it cost her to secure daycare. Thats not to say that the estate must show all the claimed lost services are attached to a specific dollar amount. The jury can determine a dollar figure for each lost service. Loss of society Under this category, beneficiaries can seek financial compensation for such things as the loss of companionship, care, assistance, protection, advice, guidance, and education provided by the decedent. Obviously, it is difficult to put a dollar figure on these types of damages because theyre not easily quantifiable. For instance, you cant look in a book to find a figure that would fairly compensate a wife deprived of decades of a future with her deceased husband. Thats the job of your attorney to place a dollar amount on the loss of a decedents society and to justify that amount with a reasoned argument to a jury. Though its not readily quantifiable, its certainly a huge and legitimate loss to the beneficiaries a loss for which they deserve to be compensated. Loss of prospective inheritance Under this category, beneficiaries can seek financial compensation for the inheritance they might have received from the decedent had the decedent lived a normal lifespan.</p> <p>9</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>Mental anguish Family members can be awarded compensation for the mental anguish they endured as a result of the loss of their loved one. Like loss of society, this may be a hard figure to quantify because theres no formula for setting a dollar value on ones pain. Nonetheless, it can account for a significant amount in a damages award because most people can relate to the grief experienced as the result of the death of a family member. Making a case for mental anguish is similar to asking for pain and suffering damages in a routine personal injury case. Your attorney could ask the jurors to award money based on the anguish endured over a set time period such as months or years. Your lawyer may take a different approach by not suggesting a formula and simply asking the jurors to determine a fair figure to compensate family members for the mental anguish theyve suffered. WRONGFUL DEATH STANDARDS As mentioned earlier in the book, wrongful death cases are brought because of another partys negligence or wrongful conduct. It might be helpful to understand a little bit about those concepts. Just because someone dies doesnt mean a wrongful death case can be justified. For example, if Bill trips in a grocery store over cans stacked in an aisle, causing him to hit his head and die, there wont be a case. Under Ohio law, those cans would be deemed an open and obvious hazard that Bill should have seen, so the store10</p> <p>THE OHIO WRONGFUL DEATH BOOK</p> <p>wouldnt be negligent. If, however, a grocery store employee spilled some clear, liquid soap on an aisle and left it there for hours without cleaning it up or posting a warning sign, and Bill took the same fateful tumble, the store would be negligent. The point is that a person or entity who causes the death has to b...</p>