If you have lost a child unexpectedly, we are truly sorry. South Carolina’s wrongful death of a minor act is part of the state’s wrongful death law. A parent may have the right to seek compensation if the death resulted from negligence or a wrongful act.
Our experienced Greenville wrongful death lawyer at Bobby Jones Law explains your legal options for the wrongful death of a child.
Who Can File a Wrongful Death Claim After a Child’s Death in SC?
Generally, the parents can file for wrongful death of a child in SC. Even when parents are divorced or were never married, both parents typically have the right. If parents can’t agree, the court will step in and decide who may file and act as personal representative. The custody arrangement may influence the court’s decision.
Can a stepparent have the legal option to file for wrongful death in SC?
In SC, a stepparent can file a wrongful death claim if they have formally adopted the child. Even if the stepparent is legally married to the child’s biological or legal parent, the stepparent can only file for wrongful death of the child if they have adopted the child and have full legal status as a parent.
What if a parent hasn’t supported the child?
South Carolina wrongful death law addresses a situation where a parent failed to provide support for the child victim during their minority. If the court finds a failure to support, the court may limit or deny that parent’s entitlement to the proceeds of the claim.
Can a foster parent file for wrongful death of a child in South Carolina?
No. See S.C. Code § 62.1-201(33).
What Counts as Wrongful Death in Cases Involving Children?
A wrongful death claim involving a child is where the fatality of a minor occurs because of the wrongful act of another. If death had not ensued, the party responsible would have been liable for personal injury damages.
South Carolina’s legal standards for wrongful death cases in children are mostly the same as they are for adults. But the attractive nuisance doctrine may apply if a trespassing child can’t appreciate the risks of a hazardous condition that is attractive to children.
Types of Accidents and Negligence That Can Lead to a Claim
Examples of accidents and incidents that may result in a wrongful death of a child claim are:
- Car accidents
- Sports and recreation
- Amusement parks
- Drowning
- Assault, intentional harm
- Gun violence
- Falls
- Electrical malfunction
- Fire, burns
- Poisoning
- Structure collapse
- Medical malpractice
- Defective products
- Boating, aviation
Compensation Available for Families After a Child’s Death
The purpose of a wrongful death claim for a child is to award compensation to survivors. A claim may also bring awareness to safety issues and accountability for behavior that caused harm.
A wrongful death claim is a civil claim and will not result in someone going to jail. But criminal charges may be issued separately, if appropriate.
How Courts Calculate Damages for Loss of a Minor
In a wrongful death claim for loss of a minor, the courts consider the loss resulting from the death to the parents. The parents may have benefited from financial support from the child in the years to come. In addition, the child would have likely brought the parents comfort, companionship, and joy.
Parents may be compensated for the financial and personal loss of a minor child. Medical expenses, travel costs for medical care before death, and funeral costs may be included in a claim.
Calculating damages for the loss of a minor can be complex. It isn’t as simple as using a wrongful death calculator. In all cases, the loss of a child causes extreme suffering. Emotional anguish and loss of companionship is typically highly valued. The child’s age and the closeness of the family relationship may factor into the claim amount.
In certain circumstances, a wrongful death claim for a minor may qualify for punitive damages.
Who benefits from a claim for wrongful death of a child?
Usually, the parents are the beneficiaries of a wrongful death claim for a child. If a minor has a spouse or children, they may be beneficiaries. For minors and adult victims, when there is no spouse or children, the parents are the sole beneficiaries. Even though the executor or administrator may be the leading person pursuing the claim, both parents may receive proceeds from the wrongful death action.
Damages are split as though the child died without a will, as most kids don’t have wills. But in South Carolina, it doesn’t matter for distributing wrongful death proceeds. The proceeds of a wrongful death claim are split as they would be without a will. Most often, this means a 50-50 split of wrongful death proceeds between parents, even if one parent had primary physical custody of the child.
Proving Negligence in Sensitive and Complex Wrongful Death Cases
Like all wrongful death claims, an essential step in the case is proving the liability of the defendant. This means proving negligence, which is the most common standard of care in wrongful death claims. Other standards may also apply.
When a party is deceased, the requirement of proving liability is still present. Fault must be proven without the testimony of the victim.
You may rely on medical reports, surveillance video, accident reconstruction, tests and recreations, testimony of others, accountants, and expert witnesses to prove the case.
While most wrongful death claims don’t go to trial, it’s important to prepare as though a case is going to trial. Evidence must be presented in court in a way that follows court rules.
In addition to proving negligence, you must prove that negligence was the cause of the child’s wrongful death. You must then establish the appropriate award of damages.
Contact an Experienced Wrongful Death Lawyer
Bobby Jones Law assists parents and guardians in evaluating legal options for the wrongful death of a child. We invite you to contact us to discuss your situation. Learn about your rights and options, what’s involved in pursuing a case, and how to proceed with the next steps. See how a lawyer can help.
