In a typical personal injury claim, the injured person will file a lawsuit against the person responsible for causing the injuries. For example, if a person is injured by a negligent driver of an automobile, the injured person has a right to seek money damages from the driver as compensation for his or her injuries, including lost wages, medical bills, pain and suffering and loss of enjoyment of life.

But what happens if the injured person dies as a result of the driver’s negligence? Is the negligent driver free from civil liability since a deceased person is unable to maintain a lawsuit? Fortunately, the answer is “no.” Under Vermont’s wrongful death statute, surviving family members may be entitled to money damages from the person who wrongfully caused the accident and resulting death.

Vermont law creates a cause of action for death by a wrongful act which shall be brought in the name of the personal representative of such deceased person. 14 V.S.A. § 1492(a). In such an action, known as a wrongful death claim, the jury may give such damages as are just, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin or husband and next of kin, as the case may be. 14 V.S.A. § 1492(b). There is, however, a shorter statute of limitations for a wrongful death claim of only two years as opposed to three years for bodily injury claims not resulting in death. This means that a wrongful death claim must be filed in most cases within two years of the death of the family member.

There are a number of decisions by the Vermont Supreme Court which have applied the wrongful death statute favorably to surviving family members or next of kin.

In Clymer v. Webster, 156 Vt. 614 (1991), the court held that the parents of an adult child could recover damages under the wrongful death statute for the death of their adult child caused by the wrongful act of another.

In a later decision, Dubaniewicz v. Houman, 2006 VT 99, the court affirmed that an adult could recover damages for the death of his adult brother. Quoting a case from Illinois, the court wrote: “Under our society’s concept of the family, we see no sufficient reason to differentiate between the deprivation of companionship, guidance, advice, love and affection suffered by brothers and sisters upon the death of a family member from that suffered by parents or children.”

The type of damages available in a wrongful death case can include loss of financial support, loss of companionship, loss of the decedent’s future earnings, and pre-death pain and suffering of the decedent. In determining the appropriate damages for loss of companionship, the court has instructed that a jury should consider “the physical, emotional, and psychological relationship of the parties, as well as the living arrangements of the parties, the harmony of family relations, and the commonality of interests and activities.” Clymer, 156 Vt. at 630.

So, what should you do if you have suffered a loss in your family that resulted from someone else’s negligence? First and foremost, allow yourself to grieve and help your family members in the grieving process. Seek support from outside resources if necessary. Next, it is important that you contact an experienced Vermont personal injury attorney to understand and protect your rights.

If you would like more information, or a consultation, concerning wrongful death claims in Vermont, please contact Bergeron, Paradis & Fitzpatrick at 802-879-6304 or online. Our skilled and compassionate accidental death attorneys and staff will help you through this very difficult time.