Schedule Your Free Consultation. Talk to an Attorney Today!

Wrongful Death Lawyer Serving Asheville, NC

Wrongful Death

Tens of thousands of people are killed every year in unintentional accidents, like motor vehicle crashes and workplace accidents. When a person dies in an accident that was someone else’s fault, the surviving family members may be left with feelings of shock and grief, tragedy and deep loss.

Surviving family members may also find that in addition to their emotional anguish, they also face an economic burden as a result of the death. Certain relatives may be able to bring a wrongful death claim to seek compensation for the loss of their loved one.

If you have lost a close relative in an accident that you believe was caused by someone else, we can help. Please call the Asheville wrongful death attorneys at The Elmore and Smith Law Firm, PC for a free consultation.

What Is a Wrongful Death Action?

When someone is injured due to the negligence of another, they may file a personal injury suit against that person for damages. When the wrongful or neglectful actions of a person lead to the death of another, there may still be a right to recovery. However, rather than the injured party bringing the claim as would occur in a personal injury case, the claim will be brought by a representative who will seek benefits for beneficiaries of the deceased.

Who Can File a Wrongful Death Lawsuit in North Carolina?

While losing a family member, a friend or a partner can be extremely challenging for anyone who experiences such a loss, not everyone is entitled to the right to file a wrongful death claim for damages in North Carolina. Only the personal representative of the deceased can file a civil action for wrongful death damages.

If the deceased had a will or an estate plan at the time of death, they may have named a personal representative. If they did not have a plan and had not named a personal representative, then the court may appoint a personal representative.

The personal representative will be responsible for pursuing the wrongful death claim for the benefit of any of the deceased person’s beneficiaries. Typically, those who are named to be a personal representative in a wrongful death action include a decedent’s spouse, child, or parent. The beneficiaries are either the people named in the will or if there was no will, the people who stand to inherit under state law.

What Do You Have to Prove in a Wrongful Death Case?

Winning a wrongful death claim can be difficult. It is not just enough to demonstrate that the defendant in the wrongful death claim caused the death. Rather, you must prove that it is more likely than not that:

  1. The defendant owed the deceased party a duty of care.
  2. The defendant breached the duty of care.
  3. The breach of the duty of care was the proximate causes of death,
  4. Damages have resulted.

Owed duty of care

The first prong is proving that the defendant owed the deceased a duty of care. Typically, this is implied. For example, a driver on the road owes all others on the road the duty to operate their vehicle reasonably and safely. A doctor owes a patient the duty to treat them with the accepted standard of medical care. Duty may be debated in some cases, such as in the case of a trespasser on private property.

Breach of duty of care

The second prong in a wrongful death claim is proving that the defendant breached the duty of care owed to the deceased. This is proven by showing that the defendant acted wrongfully or negligently (outside of what a reasonable person in the same situation would do). Examples of this might include texting while driving, failing to refer a patient to a specialist when they exhibit certain symptoms or test results, failing to remedy a known hazard on a property, and more.


Even if you can prove that the defendant acted negligently, if you cannot prove that the negligence was the proximate cause of death – that the death would not have occurred but for the defendant’s negligence – your claim will be unsuccessful.


Finally, you must prove that in addition to death, the beneficiaries of the estate or the estate suffered actual damages as a result of the death. Types of damages that are recoverable in a North Carolina wrongful death claim will be discussed in more detail below.

Keep in mind that in order to win a wrongful death claim, you must prove all four of the elements listed above.

Compensation in an NC Wrongful Death Claim

Those who survive the deceased may suffer both economic and personal losses. In North Carolina, the law as outlined in North Carolina Statutes Section 28A-18-2(b) allows for the recovery of certain damages types in a wrongful death claim, including:

  • Expenses for medical care and treatment proceeding death related to the fatal accident
  • Compensation for the value of the pain and suffering of the deceased
  • Expenses for funeral and burial costs
  • The “monetary value of the decedent to the persons entitled to receive the damages recovered,” based on:
    • The net income of the decedent prior to death
    • The value of services, protection, and care offered by the deceased
    • The value of the deceased’s companionship, society, comfort, guidance, and advice
  • Punitive damages that would have been recoverable by the deceased but for death, assuming that the death was caused by the defendant’s willful, wanton, or malicious conduct

In the rare event that no actual financial loss has occurred, but the court finds that the defendant did indeed act wrongfully, nominal damages may be awarded.

Economic and personal damages are uncapped in North Carolina. The state caps the recovery on punitive damages at three times the amount of compensatory damages or $250,000, whichever is greater.

Statute of Limitations on Wrongful Death in NC

A statute of limitations is a limit on the amount of time that a personal representative has to bring an action for wrongful death after death. While the personal injury statute of limitations is three years in North Carolina, the wrongful death statute of limitations is only two years from the date of death.

If you do not bring the claim within two years’ time, the case will be permanently barred, and recovery will not be possible. For this reason, it is important to act quickly.

Keep in mind that the clock on the statute of limitations starts ticking from the date of death, not the date of the cause of injury.

Common Causes of Wrongful Death

A wrongful death action can be filed when the wrongful or negligent actions of one party cause the death of another. There is no limit to the types of accidents that may meet this criterion.

Examples of some of the most common causes of wrongful death include:

  • Motor vehicle accidents. Car crashes are a leading cause of injury and death in North Carolina and nationwide. A negligent driver or another third party who causes a fatal accident could be held liable for it.
  • Assault/homicide. When a violent act leads to death, the responsible party may face criminal charges as well as a civil wrongful death lawsuit. Even if the perpetrator is never found criminally guilty, civil liability may still apply. Our lawyers will help you to understand the differences and take action.
  • Drowning. Water-related accidents, including swimming pool and boating accidents, can lead to fatal drowning.
  • Defective products. While products should always be safe for consumer use, manufacturing and design defects sometimes render products dangerous, if not downright deadly. Defective cars, furniture, and pharmaceutical drugs are some of the most common types of defective products.
  • Dangerous premises. Property owners in our state have a duty to maintain their properties in a reasonably safe condition. When a hazardous condition exists on a property, the property owner has a duty to remedy that condition in a reasonable amount of time. If a dangerous condition leads to a fatal injury, the property owner could be held liable.
  • Pedestrian and bicycle accidents. Pedestrians and cyclists are at significant risk of fatal injury should they be involved in a crash. The party responsible for a pedestrian or cyclist’s death should be held liable.

The above list is not exhaustive. There are numerous other accident types that may warrant a wrongful death claim.

What to Do If You Think That You Have a Wrongful Death Claim

Losing a loved one can be extremely difficult, especially when the death is unexpected and due to someone else’s wrongdoing. While it can be hard to focus on anything other than your grief and putting together funeral arrangements, the sooner that you start thinking about a wrongful death claim, the more viable your claim may be.

Steps to take if you think that you have a wrongful death claim include:

  • Ensure a police report is filed and request a copy. Whenever an accident leads to death, the police should file a detailed report. Make sure that you request a copy of this report for your records. A police report could serve as an important part of evidence during the claims process.
  • Request an autopsy. Typically, when death occurs that is unexpected and seemingly unnatural, an autopsy will be performed. In any case, it’s important that you request an autopsy if one is not already being performed. An autopsy could provide details about the cause of death, which may be essential to your wrongful death claim.
  • Get the at-fault party’s information and start collecting evidence. Interacting with the party who caused your loved one’s death may be the last thing that you want to do. That being said, at the very least, you need to get the at-fault party’s name and contact information so that you can begin the wrongful death claims process. If you’re not sure who’s at fault – and even if you are sure who’s at fault – your lawyer will need to start an investigation and the evidence-gathering process. This process might include obtaining any video footage of the accident, talking to eyewitnesses, photographing the accident scene, and more.
  • Call a lawyer. Investigating your loved one’s death isn’t just complicated, it’s emotional, and maybe way too overwhelming for you. When you hire a lawyer, a lawyer can handle the investigative process, as well as other details of the claims process, on your behalf. This allows you to focus on yourself, your family, and your future.

How Our Asheville Wrongful Death Lawyers Can Help You

Our Asheville wrongful death lawyers are prepared to handle 100 percent of your wrongful death claim, beginning with providing you with a free consultation when you call our law firm.

We want you to have all of the information that you need to make an informed decision before you proceed, and certainly before you pay us for our time. If you do decide to work with us, we can investigate your loved one’s death, identify all liable parties, gather evidence, deal with insurance companies, calculate damages, and negotiate a settlement.

We know how sensitive wrongful death claims are, and we take this into consideration as we represent you.

We always work on a contingency fee basis, and we never charge you for our services if we are unsuccessful in recovering a settlement or verdict. To learn more, please call The Emore and Smith Law Firm, PC today for your free consultation.