How do I start a wrongful death case after my child was hit by a car and killed? – North Carolina

Short Answer

In North Carolina, a wrongful death case is started by the child’s estate’s personal representative (not automatically by a parent) and is usually filed as a civil lawsuit in Superior Court. A common first step is opening an estate with the Clerk of Superior Court so someone can be appointed to act for the estate. In most cases, the wrongful death lawsuit must be filed within two years from the date of death, so it is important to start the estate and investigation promptly.

Understanding the Problem

In North Carolina, when a child is killed in a traffic collision, the key question is: how can a wrongful death case be started so the right person has legal authority to pursue the claim and meet the filing deadline. This issue usually turns on who is allowed to act for the child’s estate, what must be done first through the Clerk of Superior Court, and when the lawsuit must be filed. The process often begins while the family is still waiting on crash reports and other records, which can create delays if the estate is not opened early.

Apply the Law

North Carolina’s wrongful death claim is a lawsuit brought on behalf of the deceased person’s estate when a death is caused by another party’s wrongful act, neglect, or fault. The claim is brought by the estate’s personal representative (an executor named in a will, or an administrator appointed when there is no will). The lawsuit is typically filed in North Carolina Superior Court, and the general deadline to file a wrongful death lawsuit is two years from the date of death.

Key Requirements

Proper plaintiff (standing): The case must be brought by the child’s estate’s personal representative, acting for the estate.
Legal fault causing death: The evidence must support that another party’s wrongful act or negligence caused the death (for a crash, this often involves driving conduct and roadway facts).
Timely filing: The wrongful death lawsuit must be filed within the applicable limitation period, which is commonly two years from the date of death.

What the Statutes Say

N.C. Gen. Stat. § 1-53(4) (Wrongful death limitations period) – Sets a two-year deadline for wrongful death actions, accruing on the date of death.
N.C. Gen. Stat. § 143-299 (Claims against the State; wrongful death) – If the claim is against a State agency, it generally must be filed by the personal representative with the Industrial Commission within two years of death.

Analysis

Apply the Rule to the Facts: Here, the reported facts are that a child was hit by a car and died at the scene, and the family is looking for an attorney. Under North Carolina law, the first legal “gate” is appointing a personal representative for the child’s estate, because that person is the one who can start and control the wrongful death claim. The next gate is timing: in most cases, the lawsuit must be filed within two years from the date of death, so the estate appointment and investigation should begin early enough to avoid running out of time.

Process & Timing

Who files: The child’s estate’s personal representative. Where: The estate is opened with the Clerk of Superior Court in the appropriate North Carolina county; the wrongful death lawsuit is typically filed in North Carolina Superior Court. What: A petition/application to qualify as personal representative (executor/administrator) and then a civil complaint for wrongful death. When: Start the estate process as soon as practical, because the wrongful death lawsuit is commonly due within two years from the date of death.
Investigation and claim development: The personal representative (often through counsel) gathers key records such as the crash report, witness information, scene evidence, and any available video, and identifies all potentially responsible parties and insurance coverage. This stage often overlaps with communications to insurers and preservation requests for time-sensitive evidence.
Filing and service: The personal representative files the wrongful death complaint in the proper court before the deadline and serves the defendants under North Carolina rules. After filing, the case typically proceeds through insurance negotiations, discovery, and (if needed) court hearings and trial scheduling.

Exceptions & Pitfalls

Waiting to open the estate: A common delay is assuming a parent can file immediately. In North Carolina, the personal representative must be in place to start the case, so waiting can compress the investigation time before the two-year deadline.
Government defendants and special forums: If a State agency may be responsible, the claim may need to be filed with the Industrial Commission rather than (or before) a standard court lawsuit, and the personal representative still must act within the statutory time limit.
Evidence loss: Video footage, vehicle data, and witness memories can disappear quickly. Early preservation steps can matter as much as the court filing deadline.

Conclusion

In North Carolina, a wrongful death case after a child is killed in a car crash is generally started by the child’s estate’s personal representative, not automatically by a parent. The usual first step is opening an estate with the Clerk of Superior Court so a personal representative can be appointed and legally act for the estate. In most cases, the wrongful death lawsuit must be filed within two years from the date of death, so the next step is to have the personal representative file the case in the proper court before that deadline.

Talk to a Wrongful Death Attorney

If a child was killed after being hit by a car and the family needs to understand who can bring the case and what deadlines apply, our firm has experienced attorneys who can help explain the process and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.