Elements of Wrongful Death Under Florida Law
Quick Answer: According to Florida case law, to establish a cause of action for negligence in a wrongful death action, a plaintiff must allege and prove these elements: (1) the existence of a legal duty owed to the decedent (which is a threshold question), (2) breach of that duty, (3) legal or proximate cause of death was that breach, and (4) consequential damages.
To file a lawsuit under the Florida Wrongful Death Act, the statute itself outlines what must be followed. These lawsuits begin with the Initial Complaint, a pleading filed with the clerk’s office alleging there has been a wrongful death caused by a “… wrongful act, negligence, default, or breach of contract or warranty.” Florida Statute 768.19.
Before filing this initial pleading seeking damages for the deceased’s wrongful death, there must be an investigation of the underlying case. The purpose of the investigation is to determine if there is an underlying personal injury action to support the wrongful death claim.
In other words, all Florida Wrongful Death Act lawsuits must be based upon either (1) negligence or (2) a wrongful act on the part of the defendant. Most wrongful death actions are based upon negligent acts which have resulted in a fatal accident.
Note: In Florida, wrongful death claims did not exist under common law. So, the legislature enacted The Florida Wrongful Death Act, Florida Statutes 768.16 to 768.26, which created a statutory cause of action.
The element of duty in the underlying personal injury action can be established in two ways. The investigation can locate admissible evidence that there has been a breach of a duty owed by the defendant to the person who has died. Alternatively, there must be evidence of intentional wrongdoing (tort) by the defendant which injured the deceased and ultimately, caused his or her death.
When negligence is the basis of a Florida wrongful death lawsuit, the plaintiff must establish the following four elements:
- The existence of a legal duty owed to the decedent (which is a threshold question – see below);
- The breach of that duty;
- Legal or proximate cause of death was that breach; and
- Consequential damages as a result.
To establish a cause of action for negligence in a wrongful death action, a plaintiff must allege and prove (1) the existence of a legal duty owed to the decedent, (2) breach of that duty, (3) legal or proximate cause of death was that breach, and (4) consequential damages. See, e.g., Fritsch v. Rocky Bayou Country Club, Inc., 799 So.2d 433 (Fla. 1st DCA 2001). The duty element of negligence is a threshold legal question; if no legal duty exists, then no action for negligence may lie.
See; Fritsch v. Rocky Bayou Country Club, Inc., 799 So. 2d 433 (Fla. Dist. Ct. App. 2001) – a case involving the use of a gun.
When the wrongful death action is based upon the defendant’s violation of a statute designed to protect citizens from harm, the statute may define the duty element for a wrongful death action.
Here, the statute creates a duty on the part of the defendant to take precautions to guard against a certain class of persons getting hurt. The law or regulation defines what the defendant should do as protection. When facts are shown that the statute or regulation was violated by the defendant, then the violation itself establishes negligence per se.
In these cases, once the plaintiff has shown a violation of the statute, the first three elements as shown above are deemed established. The plaintiff need only show consequential damages in order to prove is prima facie case in the wrongful death lawsuit. Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222 (Fla. Dist. Ct. App. 1978).
Element of Duty: The decedent had to have the right to recover
By definition, a wrongful death action asserts claims for damages resulting from a person’s death that has been unjustly caused by the actions of another. Florida Statute 768.19.
Wrongful death claims are considered derivative in nature because they are entirely dependent upon a wrong that has been committed by the defendant upon the person who died. The claims depend upon (“derive from”) the underlying personal injury case involving the victim.
Establishing that the defendant’s wrongdoing is the cause of death of the decedent is the key to every wrongful death action filed in Florida.
A valid and sustainable wrongful death lawsuit in Florida will be based upon circumstances and facts which would also support a cause of action filed by the decedent for personal injuries should the decedent have lived.
If it can be shown that the deceased could not have filed a successful personal injury lawsuit based upon the circumstances should he have survived his injuries, then the defendant will have a solid basis to move to dismiss the wrongful death lawsuit. Florida Statute 768.19.
The wrongful death lawsuit will be dismissed as being insufficient under the terms of the Florida Wrongful Death Act. See, Laizure v. Avante at Leesburg, Inc., 109 So. 3d 752 (Fla. 2013).
This is why an investigation before filing any wrongful death complaint is so important.
Absence of Duty under the Law
There can be no survivor’s action for damages under the Florida Wrongful Death Act if the decedent could not have proven with admissible evidence the four elements of a negligence claim. The personal representative of the decedent’s estate must prove the elements of the personal injury case that the decedent could have filed based on the defendant’s bad acts.
Therefore, any claim for wrongful death in Florida is entirely dependent upon an illegal breach of duty committed by the defendant as defined under Florida personal injury law. If the deceased could not have successfully sued for damages because the defendant owed him or her no legal duty of care, then neither can his or her survivors.
For instance, in the case of Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109 (Fla. 2002), Julia Stuttard was killed in a car accident where she was a passenger as her husband Ian was driving a car rented from Alamo Rent-A-Car. The personal representative of her estate filed a lawsuit under the Florida Wrongful Death Act for survivor damages on behalf of her two surviving minor children.
The complaint alleged that the rental company was liable under the dangerous instrumentality doctrine. The defendant moved for summary judgment and to have the wrongful death action dismissed.
The court granted the motion, because the deceased, Julia Stuttard, had rented the vehicle along with her husband. They were “co-bailees” of vehicles owned by Alamo Rent-A-Car. The rental car company had no legal duty of care which had been breached in the accident.
Since Mrs. Stuttard could not file an injury lawsuit under the “dangerous instrumentality doctrine” as a co-bailee of the rental car, she would not have had a viable lawsuit to file if she had survived the crash. Since she had no valid cause of action, her survivors could not seek damages based upon the accident under the Wrongful Death Act. They could show no breach of duty by the defendant Alamo Rent-A-Car.
The sudden emergency defense
As a general rule, if an unavoidable accident is created by the defendant’s breach of duty, and the accident victim dies as a result, there is a valid wrongful death lawsuit for the survivors under the Florida Wrongful Death Act.
However, not all unavoidable accidents will allow the survivors to claim damages under the wrongful death statute. If the defendant can show that the “sudden emergency doctrine” applies to the circumstances, then the survivors cannot be granted an award.
The “sudden emergency doctrine” occurs in situations where there is an unavoidable accident that cannot be attributed to the defendant’s own negligence or breach. For instance, the defendant successfully requested a summary judgment and dismissed of the wrongful death action in the case of Krouse v. Avis Rent-A-Car System, Inc., 459 So. 2d 1132 (Fla. Dist. Ct. App. 1984).
In Krouse, a wrongful death action was brought against David Signore, as the driver of a rented car, as well as Avis Rent-A-Car Company, by the survivors of Steven J. Krouse, who died in the car crash. The defendants established with undisputed evidence that Mr. Signore was driving within the speed limit in the proper lane of State Road 60 when the plaintiff’s car swerved into Mr. Signore’s lane of travel. The fatal crash happened almost immediately. There was no evidence Mr. Signore could have done anything to avoid the collision. Krouse, 459 So. 2d at 1133.
Mr. Signore was shown to be a reasonable and prudent driver who faced a sudden emergency as the plaintiff’s car veered into his path, without enough time to allow him to avoid the head-on crash. Since he could not be shown to be negligent, there was no underlying personal injury cause of action. The derivative wrongful death case had no basis upon which to proceed.
Proximate cause in a wrongful death lawsuit
Once the plaintiff in a Florida wrongful death lawsuit establishes the defendant had a legal duty of care toward the decedent, there must be evidence that the defendant’s actions caused the harm suffered by the victim.
This is the element of “proximate causation.” Without proof of proximate causation, a defendant cannot be held liable for negligence and its resulting wrongful-death damages suffered by the survivors.
As stated in Florida Statute 768.19, the “wrongful act, negligence, default, or breach of contract a warranty” pled in the initial complaint must be (1) the cause of the injuries sustained by the decedent and (2) the cause of his passing. Stahl v. Metropolitan Dade County, 438 So. 2d 14 (Fla. Dist. Ct. App. 1983).
Proximate cause is shown by facts demonstrating that the injury and death of the deceased would not have occurred but for the Wrongful Act of the defendant. This wrongful act must have happened in a natural and continuous sequence, unbroken by any new and supervening cause. Stahl. The survivors’ complaint must demonstrate that it is due to the actions (or failures to act) by the defendant that the deceased was fatally hurt.
This must be accomplished on a case-by-case basis. It depends upon the facts of the individual accident and what happened that day.
The question of proximate cause is answered by specific facts unique to the circumstances of each case.
Each wrongful death lawsuit must plead and prove the unique conduct by the defendant that foreseeably and substantially caused the fatal injuries sustained by the decedent. Creamer v. Sampson, 700 So. 2d 711 (Fla. Dist. Ct. App. 1997).
Under the Florida Wrongful Death Act, the burden of proof in establishing causation is placed on the person seeking the wrongful death damages. The plaintiff may gather all of the circumstances involved in the accident and argue that considered together, it is “more likely than not” the defendant caused the accident which brought about the death of the decedent.
More Likely Than Not Burden of Proof
This is the burden of proving by a “preponderance of the evidence” standard, and it is met by establishing with admissible evidence not only that (1) the defendant proximately caused the accident but that (2) the result was the death of the decedent.
If the defendant can counter with evidence that (1) the plaintiff’s own negligent was the sole cause of his injuries, or that (2) the probabilities are evenly balanced between the plaintiff causing the accident and the defendant’s actions resulting in the event (both are “equally likely”), then the plaintiff’s burden of proof has not been met.
Once again, the wrongful death complaint is vulnerable to dismissal without a full investigation and proper pleading at the outset. Here, the defendant can successfully move for the case to be dismissed based upon a failure to show the element of proximate cause.
The wrongful death lawsuit must be dismissed under the terms of the Florida Wrongful Death Act if the plaintiff has not established that it is “more likely than not” the defendant’s actions were the proximate cause of the decedent’s death. Gooding v. University Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla. 1984).
Other causes for the fatal accident
Many accidents in Florida, particularly motor vehicle accidents, are the result of more than one cause. There may not be a single cause for the fatal accident which is brought about by the death of a loved one.
This will not block the survivors’ ability to obtain an award of wrongful death damages. Having more than one cause for the fatal accident does not block a wrongful death lawsuit from being filed under the Florida Wrongful Death Act.
The proximate cause element in a wrongful death cause of action does not have to establish a single or sole cause of death. The plaintiff in a wrongful death lawsuit needs only establish by admissible evidence the defendant’s “contributing cause” to the death.
Concurrent Causes of Fatal Accidents
When there is more than one cause of death, the causes may be “concurrent causes.” In these cases, each of the concurrent causes, existing alone, may have could have resulted in death or produced the plaintiff’s fatal injuries.
Here, the courts apply the “Substantial Factor Test” to determine if the defendant’s actions were a concurrent cause of death, allowing the plaintiff’s wrongful death cause of action to proceed. In the Substantial Factor Test, the defendant’s actions are reviewed by themselves.
Under the admissible evidence, standing alone, if the defendant’s actions could have been a cause of the death, or they could have been a substantial and material factor in bringing about the death of the decedent, then the “proximate cause” element of the wrongful death cause of action has been met.
When there are concurrent causes of death, and more than one defendant is involved, the jury is allowed to apply percentages of liability to the defendants. The damages are apportioned according to the jury’s determination of each defendant’s percentage of responsibility for what has happened. Salazar v. Santos (Harry) & Co., Inc., 537 So. 2d 1048 (Fla. Dist. Ct. App. 1989).
Intervening or Independent Cause
Defendants may argue they cannot be responsible for the wrongful death of the accident victim because of a new, independent, or intervening cause of death. This defense will be successful if the intervening cause of death:
- breaks the causal connection between the defendant’s wrong and the injury;
- was not under the defendant’s control; and
- could not have been anticipated by the defendant with reasonable for side and diligence
The intervening cause defense will not succeed if the plaintiff can show the intervening cause could have been anticipated by the defendant, and therefore the defendant could have taken steps to prevent the accident from happening. The evidence here can include the prior actions of the defendant, which may demonstrate an admissible indication that the defendant knew of the danger and what precautions should be taken to address it. Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98 (Fla. Dist. Ct. App. 1980).
Disease as the cause of death
It is an unusual situation, but there are times when an accident will impact an existing disease suffered by the victim, hastening and prematurely causing their death. The disease is the reason they have passed away, but the accident hastened the passing.
In these circumstances, the Florida Wrongful Death Act will provide a cause of action for damages based on the disease after an injury. Potts v. Mulligan, 141 Fla. 685, 193 So. 767.
In these cases, the plaintiff must demonstrate that the defendant’s actions were the proximate cause of the acceleration of the disease or condition.
Showing the wrongful act precipitated the disease is sufficient to meet the proximate cause element of a Florida wrongful death cause of action. This is true even if the disease alone would have ultimately resulted in the person’s demise.
These can be complicated cases to prove. Medical opinion testimony will be necessary, and it must be sufficient to connect the defendant’s wrongful actions with the acceleration of the disease.
For example, in the case of Spezzano v. Yoxall, 857 So. 2d 935 (Fla. Dist. Ct. App. 2003), a teenager named John Spezzano died as a result of a brain stem tumor after being involved in an automobile accident. John survived the crash, but he did sustain a brain injury as his head slammed into the windshield.
His mother, as a personal representative of his estate, filed a wrongful death cause of action against the driver involved in a collision with her son. She argued that the head trauma suffered and sustained by her son in the car crash accelerated his demise as caused by the brain tumor.
The defendant driver successfully had the wrongful death action dismissed. The defendant argued that the plaintiff’s medical opinion testimony failed to establish that the boy’s death was caused or aggravated by any trauma suffered in the accident itself.
Without specific expert medical testimony on the acceleration of the disease or medical condition caused by the decedent’s head hitting the windshield in the crash, the wrongful death action could not be sustained.
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