To win a Wrongful Death case, the estate must prove that the death was caused by a breach of warranty or by the negligence, recklessness, gross negligence or intentional act of the person or company that caused the death.
In a seemingly unusual legal twist, the money obtained in a Wrongful Death case technically does not become part of the decedent’s estate but is the property of the surviving family members and is divided according to the specific rules contained in the Wrongful Death statute found in the Massachusetts General Laws. This can be an important detail in making sure the money goes to family members instead of to creditors of the Decedent. A portion of the law states:
MGL c.229 Section 2
A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages.
A related statute which allows claims for the conscious suffering that preceded the decedent’s death is:
MGL c.229 Section 6: Conscious suffering; recovery of damages Section 6. In any civil action brought under section two or five A, damages may be recovered for conscious suffering resulting from the same injury, but any sum so recovered shall be held and disposed of by the executors or administrators as assets of the estate of the deceased.