Homicide vs. Wrongful Death

Homicide is a crime for which the guilty party may be charged and convicted in criminal court. If convicted, the defendant may be incarcerated or executed. A homicide conviction, however, does not provide the survivors of the deceased with any financial compensation for damages they incur due to the death of a loved one. To recover such compensation, the survivors (through the executor/administrator of the estate), may file a wrongful death suit in civil court.

In a criminal case, the defendant’s guilt must be proven beyond a reasonable doubt. In a wrongful death case, however, the bar is lower. The defendant’s liability for wrongful death must be proven by only a preponderance of the evidence. If that evidence shows it’s more likely than not that the defendant caused the death, the plaintiff (representing the survivor’s loved ones) prevails, and the defendant is ordered to pay damages set by the court. In South Carolina, a defendant in a homicide case may also be a defendant in the resulting wrongful death case.

Determining Negligence 

In a wrongful death suit resulting from a car crash negligence may be shown if the police report of the accident shows that the at-fault driver was:

  • Texting and driving
  • Under the influence of alcohol
  • Speeding or violating other traffic regulations

In such cases, the at-fault driver’s behavior was negligent per se (in itself), rendering that driver responsible for the accident and the resulting death of the victim. If it can be proven that the fatal crash was caused by faulty equipment or car repair, the auto/parts manufacturer or repair service, respectively, may be held strictly liable for the accident and death.

Damages in a Wrongful Death Case

Compensatory damages awarded by the court to the survivors of the deceased in a wrongful death case might include:

  • Funeral/burial expenses
  • Medical bills before death
  • Loss of consortium
  • Loss of financial support and benefits
  • Emotional/psychological trauma suffered by survivors

If the defendant’s actions are found to have been intentional, willful, wanton, or reckless (driving under the influence, for example), the court might award the survivors punitive/exemplary damages beyond the compensatory damages listed above.

Standing to Bring a Wrongful Death Case in South Carolina

In South Carolina, a wrongful death action must be brought by the executor/administrator of the deceased party’s estate, who is normally named in the will. The court may appoint a representative, however, if:

  • The deceased died intestate (without a will or estate plan).
  • The will named no executor.
  • The named executor chooses not to represent the survivors in a wrongful death suit.

Regardless of who the representative is, the damages recovered in a wrongful death suit go to the deceased’s:

  • Surviving spouse and/or children
  • Surviving parents if there is neither spouse nor child
  • Heirs if there are no parents, spouse, or children

Wrongful Death Statute of Limitations

A statute of limitations sets a time limit for taking legal action. South Carolina gives you either two or three years from the date of death to file a wrongful death suit, depending on who the estate is suing. This may sound like a long time, but it’s best to file your suit as soon as possible, while details surrounding the death are fresh in the minds of witnesses. 

If you don’t file before the deadline, you could lose your chance to collect any compensation for your loved one’s wrongful death. An experienced lawyer can help you to observe the statute of limitations and other procedural requirements of the court.  

Has Your Loved One Died To The Negligence Of Others?

If you're loved one has died due someone else's negligence you should speak to a wrongful death attorney as soon as possible. Contact us online or call our Charleston, South Carolina office directly at 843.488.2359 to schedule your consultation. We are also able to meet clients at our Conway, Florence, Myrtle BeachMurrells InletMt. PleasantNorth Myrtle Beach or North Charleston office locations. 

Dirk J. Derrick
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South Carolina Lawyer Dirk Derrick helps victims recover from car accidents, personal injury & wrongful death.