How a Failure to Disclose May Lead to a Wrongful Death Claim

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How a Failure to Disclose May Lead to a Wrongful Death Claim

12 October 2015
 Categories: , Blog

Some home sellers and real estate agents think failing to disclose issues about the home they are selling will only result in minor inconvenience to the new homeowners or the people who buy the home won't have any legal recourse to recover damages from them. However, if someone is fatally hurt because a seller or agent failed to disclose a hazard that caused the deadly injury, a simple failure to disclose case can quickly advance into a wrongful death claim. Here's how.

Elements of a Wrongful Death Claim

A wrongful death claim is a civil lawsuit the surviving family members of deceased individuals file against other parties whose negligence resulted in those individuals' deaths. Although the person's death may result in criminal charges against the liable party, a criminal case is not necessary for the family members to file a wrongful death civil suit.

There are three things the plaintiff must prove to win a wrongful death claim:

  • The defendant owed a duty of care to the deceased person, meaning the person had a responsibility to behave in a certain way to prevent injury to the deceased person.
  • The defendant breached the duty of care required in that particular situation.
  • The defendant's breach of duty caused the victim's death.

For instance, a Maryland family is suing the previous owner of their home and the real estate agent for failing to disclose the home had a snake infestation. Although the family had heard rumors there was something wrong with the home, the real estate agent allegedly assure them there was no problem. The new owners didn't learn of the seriousness of the issue until their 4-year-old son happened upon a snake in the house and had the building inspected.

Fortunately, no one was injured. However, if anyone in the home had been bitten by a snake and died, the family would likely have a viable wrongful death case because the previous owner and the real estate agent had a duty to disclose the dangerous condition and failed to do so.

Proving Failure to Disclose

A critical component of a wrongful death claim is proving the defendant in the case had a duty of care to the decedent. As such, the plaintiff will have to prove the defendant was legally required to disclose the dangerous condition in the home that lead to the victim's death.

In general, sellers must tell buyers about hazards they know about. Additionally, federal law requires homeowners to tell new buyers about any lead-based hazards if the home was built prior to 1978. Typically, home sellers are not required to hire inspectors to uncover problems they had no knowledge of.

However, disclosure laws differ from state to state, and some states have stricter rules than others. For instance, California requires home sellers to tell potential buyers about a wide range of issues including flooding or drainage problems, natural hazards, the condition of appliances, and whether the home is contaminated with meth residue. Alabama, on the other hand, doesn't require home sellers to disclose anything. It's the duty of the buyer to uncover defects.

In addition to proving the liable party had a duty to disclose the hazard, the plaintiff must also prove the hazard wasn't something that could be easily discovered prior to purchasing the home. For instance, if the basement floor had a giant crack in it and the buyer didn't ask questions about it, then the fault for any resulting issues would fall on the buyer because he or she was aware of the hazard before moving in.

On the other hand, if the plaintiff started receiving mysterious letters from a potentially dangerous stalker who had been stalking the home for years, as allegedly happened to one New Jersey family, then the plaintiff wouldn't be held responsible, because that's something the individual could not have known about without someone telling him or her.

If the plaintiff in the case is able to adequately prove the defendant was negligent in his or her responsibility to tell potential buyers about a hazard, and the hazard results in someone's death in the home, then the defendant could be held liable for damages related to both failing to disclose and wrongful death. Whether you're the plaintiff or the defendant in this situation, it's essential that you speak to law firms like Allison & Rickards, Attorneys at Law, LLC.