Brad Bradshaw M.D., J.D., L.C.

Disclaimer: Information on this website is of a general nature, may not apply to your case, and may not be current because laws are constantly influx. The following information is not legal advice specific to any one case. Read the full disclaimer below.

Dr. Bradshaw and Wrongful Death Litigation: The main purpose of a wrongful death action is to compensate specific relatives for the loss of the decedents' support and companionship. To recover under the wrongful death statute, usually the death must have resulted from some act of negligence or intent, except in Product Liability cases.

Time Limit: The statute of limitations for bringing a wrongful death suit is, typically, three years; however, statutes of limitations are highly technical and there are exceptions. To determine a definite statute of limitations usually requires a qualified attorney's analysis. The general Wrongful Death statute is set out below:

Every action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue; provided, that if any defendant, whether a resident or nonresident of the state at the time any such cause of action accrues, shall then or thereafter be absent or depart from the state, so that personal service cannot be had upon such defendant in the state in any such action heretofore or hereafter accruing, the time during which such defendant is so absent from the state shall not be deemed or taken as any part of the time limited for the commencement of such action against him; and provided, that if any such action shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit, or after a verdict for him the judgment be arrested, or after a judgment for him the same be reversed on appeal or error, such plaintiff may commence a new action from time to time within one year after such nonsuit suffered or such judgment arrested or reversed; and in determining whether such new action has been begun within the period so limited, the time during which such nonresident or absent defendant is so absent from the state shall not be deemed or taken as any part of such period of limitation.

Venue: Venue refers to the place where a lawsuit may be brought into court. In Missouri, in many injury (tort) cases, venue is often determined to be the county where the first injury occurred.

Who May Bring A Claim: Under general statutes for wrongful death there are generally three classes of people who may bring a wrongful death action: (1) spouse, children, grandchildren or parents; (2) brother or sister, niece or nephew, and (3) Plaintiff ad litem. The specific statute is set out below:

RSMO 537.080:

1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:

(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;

(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;

(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.

2. Only one action may be brought under this section against any one defendant for the death of any one person.

Class three, plaintiff ad litem, refers to a person who is approved by the court and can prove that they have some interest in recovery for the death of the decedent. A plaintiff ad litem typically will only be allowed to recover if there are no living relatives who fall within class one or two. Often an aunt, uncle, or some other distant relative is appointed as the plaintiff ad litem.

Compensation and Recovery for Losses: The primary type of recovery for wrongful death is for the loss of service and society of the decedent; however, funeral expense and expenses of last illness can be recovered as well as conscious pain and suffering on the part of the decedent. The types of recovery allowed under the Missouri Approved Jury Instructions are enumerated below:

MAI 5.01: If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff and decedent sustained and plaintiff is reasonably certain to sustain in the future as a direct result of the fatal injury to descendent. You must not consider grief or bereavement suffered by reason of the death.

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