Wrongful Death Claim After a Pedestrian Is Killed by a Driver

Attorney Answer

A wrongful-death claim is likely available, and the fact that he was in the middle of the road does not end it — but it makes shared fault the central fight, and how that fight resolves depends on the date of the crash. I am sorry this happened to your family.

Florida channels a death claim through one person. Sections 768.16 through 768.26 "may be cited as the 'Florida Wrongful Death Act.'" Under § 768.20, "[t]he action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death." Individual family members do not each file suit. Section 768.20 also provides that no separate personal-injury action survives the death, and it adds a rule that matters when fault is contested: a defense that would bar or reduce one survivor's recovery "shall not affect the recovery of any other survivor."

Section 768.21 sets the damages. Each survivor may recover lost support and services. Minor children, and all children if there is no surviving spouse, "may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury." An adult child may recover mental pain and suffering only if there are no other survivors — a limit that catches families off guard. Medical or funeral expenses may be recovered by a survivor who paid them, and the estate has separate items, including lost earnings.

Now the fault question. Being in the roadway does not make a pedestrian legally at fault by itself, and it does not excuse a driver who was speeding, distracted, or not keeping a proper lookout. Drivers carry real duties toward people on foot — § 316.130(7)(a), for instance, requires a driver at a signalized intersection to "stop before entering the crosswalk and remain stopped to allow a pedestrian, with a permitted signal, to cross a roadway." Pedestrians carry duties elsewhere in § 316.130 too, and an honest evaluation weighs both.

What a share of fault does to the claim depends on the crash date. For an accident before March 24, 2023, § 768.81(2) provided: "In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery." Fault reduced the award; it never eliminated it. For an accident on or after that date, the current subsection (2) is "subject to subsection (6)," and § 768.81(6) provides that "any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages." Which version governs a given crash is a lawyer's question and must not be guessed at.

One more coverage point: under § 627.736(1), personal injury protection reaches "other persons struck by the motor vehicle," and its benefits include $5,000 in death benefits alongside the $10,000 medical and disability limit.

What you can do

1. Request the traffic crash report and the case number from the investigating agency, and keep every document they give you.

2. Ask a Florida attorney about opening the estate and having a personal representative appointed. Nothing else can be filed until that is done, and it takes time.

3. Write down who the survivors are — spouse, children and their ages, parents — because the statute ties specific damages to specific relationships.

4. Ask a lawyer immediately about sending preservation letters for the vehicle, its electronic data, and any nearby business or traffic camera footage. Video is routinely overwritten within days.

5. Do not give a recorded statement to the driver's insurance company, and do not sign anything or accept a payment, until a lawyer has reviewed it.

6. Keep receipts for funeral and medical expenses, and note who paid them. The statute allocates those to the survivor who paid.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts — the crash date, who survives him, and what the report says — is worth more than any general guidance, including this page.

⏱ Time limits apply. Wrongful-death deadlines are short. Current § 95.11(5)(e) sets two years for wrongful death and § 95.11(5)(a) sets two years for negligence claims accruing on or after March 24, 2023; before that date, the former four-year period under the earlier text of § 95.11 governed ordinary negligence claims. If any government vehicle or agency is involved, § 768.28(6)(a) requires written presuit notice, and for wrongful death that notice period is two years. A Florida attorney needs to run these against your dates now. This page does not calculate any date.