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Can I Bring a Wrongful Death Case Even if the Defendant Is Already in Jail?


When someone dies as the result of a criminal act, the public demands justice. Police investigate and arrest a suspect. The defendant is then formally charged and tried in criminal court. If convicted, the defendant is sentenced to prison.

But where does all this leave the family of the victim? And what if the suspect is never formally tried–or is even acquitted following a criminal? What recourse does the family have?

Wrongful Death vs. Criminal Homicide

The answer is a wrongful death lawsuit. Wrongful death is a special type of personal injury claim recognized under Tennessee law. Since the victim is no longer alive and cannot sue, the right to bring a wrongful death claim belongs to the victim’s surviving spouse, next of kin, or estate, depending on the circumstances.

Since wrongful death is a civil action, it exists separate and apart from any separate criminal proceeding involving the same defendant or victim. In other words, if you have lost a loved one, you can bring a wrongful death lawsuit even if the responsible party has already been tried and convicted in criminal court. Similarly, you can maintain a wrongful death action even if the defendant is never charged with any criminal offense.

This may sound odd, but keep in mind civil and criminal trials have different standards of proof. In a criminal case, the jury must find the defendant guilty “beyond a reasonable doubt.” But in a civil wrongful death case the jury’s findings are based on a “preponderance of the evidence,” i.e. it is more likely than not the defendant is responsible for the victim’s death.

Jury Awards $2M to Family of Knoxville Murder Victim

A recent high-profile example of a wrongful death lawsuit involves a former Knoxville insurance agent convicted of killing a former co-worker in 2011. The victim’s mother and son subsequently filed their own wrongful death lawsuit. In February 2017 a jury returned a judgment in favor of the family and awarded $2 million in damages. The defendant asserted his innocence in both the civil and criminal trials.

Damages in a wrongful death case may reflect a number of items, including the loss of the victim’s wages and earning capacity, the family’s suffering and mental anguish, and the loss of the victim’s love and companionship.

Keep in mind, just because a plaintiff wins a wrongful death judgment, that is not a guarantee it will be paid. A judgment is simply a legal declaration that the plaintiff is entitled to a certain sum of money from the defendant. In the case above, for example, it is unknown what assets the defendant–who is serving a life prison sentence–actually has. But the judgment itself will remain on the books for at least ten years, at which time it may be renewed. This means any assets discovered in the defendant’s name during that time may be subject to seizure by the plaintiffs.

Statute of Limitations Extended When Criminal Charges Are Brought

The Tennessee General Assembly actually recognized the impact criminal charges may have upon a civil justice claim by amending and extending the statute of limitations applicable to injuries.  Tennessee Code Annotated §28-3-104 provides that a claim for injury must be brought within one (1) year of the injury against the wrongdoer.  The General Assembly, however, amended this statute to extend that period of time to two (2) years if criminal charges are brought against the individual for actions that gave rise to the injury.  This is meant to allow prosecutors and law enforcement to move forward with criminal charges while the victim is not forced to immediately file suit to protect their rights.

Seek Justice With the Help of a Knoxville Wrongful Death Attorney

Many families do not care about the money. For them, a wrongful death lawsuit is about justice and obtaining some peace of mind. Whatever your reasons, if you have lost a family member due to someone else’s negligent or criminal act and need to consult with a qualified Tennessee personal injury lawyer about your options, contact the offices of Fox, Farley, Willis & Burnette, Attorneys at Law, in Knoxville or Clinton today.



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