I witnessed a wrongful death; do I have a case?

As a wrongful death lawyer, I often get calls from people who witnessed the wrongful death but were not entitled to compensation pursuant to Florida’s wrongful death statute, Florida Statute 768.18.  According to the statute, you have to either be a child or parent of the deceased to get compensation for most of the damages available to survivors of the wrongful death of a loved one.

However, there is a very interesting and important loophole to the strict rules regarding who can bring a case for wrongful death.  It’s called the impact rule.  According to the impact rule, somebody involved in an accident may bring a claim for mental and emotional pain and suffering for witnessing the death of somebody close to them.  It’s very common for people who witness the death of someone they love to suffer from PTSD, depression, anxiety, and many other psychological ailments.  The only catch is that two elements must be met:  (1) there must have been a physical impact on the person bringing the claim, and (2) there must have been a close relationship between the person bringing the claim and the deceased.

If you were involved in a car accident and the person you were riding with died, witnessing that death can be a very significant element of your damages.  Even if you weren’t in the crash but just witnessed it, you could have a claim for mental and emotional pain and suffering as long as a piece of debris or some other physical object impacted you.  If there was no physical impact upon you whatsoever, you won’t have a viable claim for your mental and emotional pain and suffering, no matter how much it affects your life.

If there was an impact and you did witness a death, it would be very wise to seek counseling because not only will it help you deal with the trauma, but it will also allow your attorney to build the evidence you need to get full and fair compensation for your damages.  The counselor is often the star witness in the case concerning your damages.  The courts are split regarding whether lawyers can hire grief experts to discuss the impact of witnessing a death, but treating counselors are always allowed to testify.  Psychological injuries are real, and they can ruin your life.  You need an objective, professional person to relay the extent of your injuries to the jury.  

Technically, unless you fall under the category of people who are allowed to bring a wrongful death claim, your case is not considered a wrongful death case.  However, when you have psychological trauma related to watching someone close to you die, you can still claim the same elements of mental and emotional pain and suffering, which often make up the bulk of the damages in a wrongful death claim.  As a wrongful death attorney, I often claim mental and emotional pain and suffering as the only element of the damages I seek because I’m asking for tens of millions of dollars. I don’t want the jurors’ minds to be anchored to smaller numbers, such as funeral and medical expenses, when they put the amount of damages on the verdict form.

It would be wise to consult a lawyer as soon as possible about how you can document your damages related to witnessing the wrongful death.  I would also advise you to avoid posting on social media about your loved one’s death.  Those posts can only serve to harm your case.  They never help.  However, I would encourage you to keep a journal related to your mental and emotional pain and suffering so you can use it later.  I give my clients a cell number where they can text me 24/7 and use texting as a method of journaling.  Anything they send me in the text is protected by the attorney client privilege, and it’s a great way for my client to let me know how they are doing in real time.


Jimmy Fasig

Wrongful Death Lawyer