Wrongful Death Lawsuit
The New Mexico Wrongful Death Act provides a cause of action when a death has been caused by the wrongful act of another that would be actionable as a personal injury matter had the person not died. The Act provides that:
Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.
N.M. Stat. Ann. § 41-2-1
Such actions are brought in the name of a person appointed by the Court to look after the best interests of statutory beneficiaries (i.e., the individuals set forth by statute that are entitled to receive the proceeds of any suit.) This person is called the Personal Representative (PR) of the Wrongful Death Estate and it is separate from decedent’s probate estate. This PR is empowered to investigate and pursue any action for the death and responsible for the distribution of the proceeds as follows:
- if there is a surviving spouse and no child, then to the spouse;
- if there is a surviving spouse and a child or grandchild, then one-half to the surviving spouse and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation;
- if there is no husband or wife, but a child or grandchild, then to such child and grandchild by right of representation;
- if the deceased is a minor, childless and unmarried, then to the father and mother who shall have an equal interest in the judgment, or if either of them is dead, then to the survivor;
- if there is no father, mother, husband, wife, child or grandchild, then to a surviving brother or sister if there are any; and
- if there is no kindred as named in Subsections A through E of this section, then the proceeds of the judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.
N.M. Stat. Ann. § 41-2-3. Damages in such actions may be determined by what a fact finder, a judge or a jury, deems faith and just for life of the decedent, including any of the following:
- The reasonable expenses of necessary medical care and treatment and
funeral and burial;
- The pain and suffering experienced by (name of decedent)
between the time of injury and death;
- The lost earnings, the lost earning capacity and the value of the lost
household services of (name of decedent) considering ‘s (name of decedent) age, earning capacity, health, habits, and life expectancy. In considering loss of earnings or earning capacity, deductions must be made for income taxes, social security taxes, other taxes, and
personal living expenses of (name of decedent) The damages set forth in this paragraph are damages for future loss of money and are paid in a lump sum. Therefore, a reasonable discount must be made for the future earning power of the damages awarded;
- The value of the ‘s (name of decedent) life apart from ‘s (name of decedent) earning capacity
- The mitigating or aggravating circumstances attending the wrongful act,
neglect or default;
[6. The emotional distress to the [spouse], [parent(s)], [grandparent(s)],
[other familial caretaker(s)] caused by the loss of [society,] [guidance,] [companionship] and [sexual relations] enjoyed with the deceased;]
- The loss of guidance and counselling to the ‘s (name of
decedent) minor children.
- You may also consider the loss to the beneficiaries of other expected benefits that have a monetary value. While the presence or absence of a measurable monetary loss to beneficiaries is a factor for consideration, damages may be awarded even where monetary loss to the surviving beneficiaries
cannot be shown.
If you are likely looking for information pertaining to what can be done after a wrongful death has been committed, whether it be from the actions of a corporation, a government, a hospital or doctor, or another person, reach out to our office (505) 242-7200. The Davis Kelin Law Firm is located in Albuquerque and serves all of New Mexico and is here to help you and your loved ones.