Wrongful Death
Overview
A "wrongful death" occurs when a person is killed due to the negligence or misconduct of another individual, company or entity. An action for wrongful death belongs to the decedent's immediate family members, often called "survivors". The most common survivors are surviving spouses and children, and sometimes parents. A suit for wrongful death may only be brought by the personal representative of the decedent's estate. California has a civil "wrongful death statute," which establish the procedures for bringing wrongful death actions.
Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent's death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent's will.
A wrongful death claim may arise out of a number of circumstances, such as a vehicle accident, nursing home abuse or neglect, medical malpractice, occupational exposure to hazardous conditions or substances, dangerous conditions on the land or premises of another, or participation in a supervised activity.
Damages in a Wrongful Death Lawsuit
Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent's death. If the survivors paid or are responsible for the decedent's funeral or medical care, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent's death.
Determining Pecuniary Loss
When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the survivors. This determination may seem straightforward, but it often becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss. Usually, the main consideration in awarding damages is the decedent's circumstances at the time of death. For example, when an adult wage earner with dependants dies, the major parts of the recovery are:
- loss of income, and
- loss of parental guidance.
The jury may consider the decedent's earnings at the time of death, the last known earnings if unemployed, and potential future earnings.
Punitive Damages
Punitive damages are awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, or deter others from behaving similarly. In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that have specific statutes that permit the recovery of punitive damages. In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have held punitive damages permissible. An attorney will be able to advise you as to whether your state allows punitive damages.
Survival Actions for Personal Injury
In addition to damages for wrongful death, the survivors may be able to recover damages for personal injury to the decedent. These are called "survival actions," since the personal injury action survives the person who suffered the injury. The decedent's personal representative can bring such an action together with the wrongful death action, for the benefit of the decedent's estate. In a survival action for a decedent's conscious pain and suffering, the jury may make several inquiries to determine the amount of damages, including:
- the degree of consciousness
- severity of pain; and,
- apprehension of impending death, along with the duration of such suffering.
Children and the Elderly
Setting a price on human life is not a pleasant task, but it is one that courts and juries are required to do in wrongful death actions. Because the primary measure of damages in a wrongful death action is pecuniary loss, the death of a child or an elderly person may raise difficulties in arriving at an adequate damage award.
Children
When an adult dies, the pecuniary loss to the family is readily quantifiable. For example, when a parent dies, a child may seek damages for loss of the parent's care, income, nurturing, and guidance. When a child dies, the parents' recovery is limited to their pecuniary loss, which is usually quite small.
Elderly Persons
In the same way that the death of a child might not produce a large award of damages, the death of an elderly person also has somewhat limited recovery potential. Modest awards for the deaths of elderly people are due to several factors. First, it is often assumed that someone past the age of retirement no longer has significant earning potential. Second, the children of elderly people are usually adults who no longer need significant guidance, support, or nurturing from their parents.