Florida Wrongful Death Act | Statute 768.16

Wrongful death can be defined as the taking of the life of an individual resulting from the willful or negligent act of another person or persons. According to the law, if an individual is killed by the wrongful conduct of another, then the decedent’s heirs and/or other beneficiaries may file a wrongful death action against the person (or persons) responsible for the decedent’s death.

A wrongful death action is a civil form of action and thus separate from any criminal charges that may be pending, with the outcome of one having no effect on the outcome of the other. Therefore, it is not uncommon for one to be acquitted of murder but sued in civil court by the surviving family for wrongful death.

Wrongful death actions fall under the auspices of tort law, which is governed by statute. Since every state has its own statutory laws, wrongful death tends to vary from state to state in terms of whom may sue, what one can sue for and whether or not there are any limits to a damages award.

The Florida Wrongful Death Act (hereinafter, ‘Act’) can be found in statutory sections 768.16 through 768.26. The stated purpose of the Act is to shift the losses resulting when a wrongful death occurs from the decedent’s survivors to the wrongdoer. Thus, according to Florida law, remedial damages for wrongful death ‘shall be liberally construed’.

What Are the Grounds for Wrongful Death?

According to Florida law, when a death is caused by a wrongful act, negligence, default or breach of contract or warranty and, if the person would have survived, the person would have had the right to sue for damages, then there exist grounds for a wrongful death action.

Who Can Sue for Wrongful Death in Florida?

An action for wrongful death can be filed by the decedent’s personal representative (such as an attorney), who is responsible for recovering all damages caused by the death for the benefit of the decedent’s survivors. According to Florida law, a survivor includes the decedent’s spouse, children, parents and, in some cases, any blood relatives and adoptive brothers and sisters. The law specifically includes a child born out of wedlock of a mother, but excludes the child born out of wedlock of the father unless the father has taken responsibility for the child’s support.

What Kind of Damages Can Be Recovered?

The Florida Wrongful Death Act allows each survivor to recover the total value of lost support and services from the date of the decedent’s injury or death, with interest and future loss of support and services from the date of death, reduced to present value. When making this determination, the court should consider the following factors:

• The survivor’s relationship to the decedent
• The amount of the decedent’s probable net income available for distribution to the survivor
• The replace value of the decedent’s services to the survivor
• The joint life expectancies of the survivor and the decedent and, in the case of a minor child, the period of minority

Other forms of optional damages available, dependent on the circumstances of the wrongful death, include:

• A spouse may recover for loss of companionship, protection and mental pain and suffering
• Minor children may recover for lost parental companionship, instruction and guidance, along with mental pain and suffering
• Surviving parents of a minor child may also recover for mental pain and suffering
• Medical and/or funeral expenses

For more information on actions under the Florida Wrongful Death Act, contact the Law Offices of James O. Cunningham, P.A., at 877-FL-INJURY (877-354-6587) for a free initial consultation.