Wrongful Death Law

A Brief Overview of Wrongful Death Law.

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NOTE: THIS INFORMATION IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND SHOULD NOT IN ANY WAY TAKE THE PLACE OF LEGAL ADVICE.  ALL EXAMPLES ARE SIMPLY ILLUSTRATIVE AND ARE NOT INTENED TO PREDICT AN OUTCOME IN A SIMILAR SITUATION.  CLICK HERE to contact a Wrongful Death Lawyer.

WRONGFUL DEATH AND SURVIVOR ACTIONS

Most states have two types of statutes that take effect when a personal injury victim dies.  A "survival" statute governs whether the victim’s own right of recovery continues after his death.  The survival statute in most states provides that when an accident victim dies, his estate may sue for those elements of damages that the victim himself could have sued for had he lived.  Thus a survival statute typically allows the estate to sue for pain and suffering, lost earnings prior to death, actual medical expenses, etc.  In many states, if death is instantaneous, there is no survival action at all, since all damages are sustained on account of or after the death.

Most states have "wrongful death" statutes, which allow a defined group to recover for the loss they have sustained by virtue of the decedent’s death.  Typically, the decedent’s spouse and children are covered.  If the decedent has no spouse or children, usually the parents are covered.

In a wrongful death action, survivors may recover for:

1.     The economic support they would have received had the accident and death not occurred; and

2.     Usually, the companionship (including sexual companionship) and moral guidance that would have been given by the decedent.  Some states also allow the survivors to recover for grief.

3.     Many courts now allow a parent whose child has died to recover for the loss of companionship of that child.

NEGLIGENCE

The tort of "negligence" occurs when a defendant’s conduct imposes an unreasonable risk upon another, which results in injury to that person.  The negligent actor’s mental state is irrelevant.  The components of a negligence action are:

·        Duty: A legal duty requiring defendant to conduct himself according to a certain standard, so as to avoid unreasonable risk to others.

·        Failure to conform: This element can be thought of as "carelessness."

·        Proximate cause: A sufficiently close causal link between defendants act of negligence and the harm suffered by plaintiff. This is "proximate cause."

·        Actual damage: Actual damage suffered by plaintiff.

DUTY

GENERALLY

Generally, a person owes everyone else with whom he comes in contact a general "duty of care."  Normally, you don’t have to worry about this duty – it is the same in all instances, the duty to behave with the care that would be shown by a reasonable person.  But there are several situations in which courts hold that the defendant owes plaintiff less than this regular duty.  The most important of these situations are: (1) D generally has no duty to take affirmative action to help P; (2) D generally has no duty to avoid causing unintended mental suffering to P; and (3) D has no duty to avoid causing pure economic loss to P in the absence of more tangible types of harm such as physical injury.

If the danger or injury to P is due to D’s own conduct, or to an instrument under D’s control, D has the duty of assistance.  This is true today even if D acted without fault. 

Ex.: A truck driven by D strikes P, a pedestrian. Even though D has driven completely non-negligently, and the accident is due to P’s carelessness in crossing the street, D today has a common-law duty to stop and give reasonable assistance to P.

Where the victim and the defendant are engaged in a common pursuit, so that they may be said to be co-venturers, some courts have imposed on the defendant a duty of warning and assistance.  For instance, if two friends went on a jog together, or on a camping trip, their joint pursuit might be enough to give rise to a duty on each to aid the other.  Once D voluntarily begins to render assistance to P (even if D was under no legal obligation to do so), D must proceed with reasonable care.  D is especially likely to be found liable if he begins to render assistance, and this has the effect of dissuading others from helping P.

Ex.: If D stops by the roadside to help P, an injured pedestrian, and other passers-by decline to help because they think the problem is taken care of, D may not then abandon the attempt to help P.

If D has a duty to control third persons, D can be negligent for failing to exercise that control.  A duty to control a third person may arise either because of a special relationship between D and P, or a special relationship between D and a third person. For instance, some courts now hold that any business open to the public must protect its patrons from wrongdoing by third parties.

Ex.: D, a storekeeper, fails to take action when X, an obviously deranged man, comes into the store wielding a knife. P, a patron, is stabbed. Most courts would find D liable for failing to take action.

UNREASONABLE RISK

Plaintiff must show that defendant’s conduct imposed an unreasonable risk of harm on him.  This is NOT judged by results: It is not enough for P to show that D’s conduct resulted in a terrible injury.  P must show that D’s conduct, viewed as of the time it occurred, without benefit of hindsight, imposed an unreasonable risk of harm.  When determining whether the risk of harm from D’s conduct was so great as to be "unreasonable," courts use a balancing test:

"Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done."

THE REASONABLE PERSON

The reasonableness of Defendant’s conduct is viewed under an objective standard: Would a "reasonable person of ordinary prudence," in Defendant’s position, act the same way?  Defendant does not escape liability merely because she intended to behave carefully or thought she was behaving carefully.  If Defendant has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done.  The ordinary reasonable person is not deemed to have the particular mental characteristics of Defendant.

Intoxication is no defense: Even if Defendant is drunk, they are held to the standard of conduct of a reasonable sober person.

Custom: Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care.

·        Evidence by D: Thus where D shows that everyone else in the trucking industry does things the way D did them, the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent.

·        Proof by plaintiff: Conversely, proof offered by P that others in the trucking industry followed a certain precaution that D did not, will be suggestive but not conclusive evidence that D was negligent.

A reasonable person possesses at least limited ability to anticipate the conduct of others.  A trucker may be required to anticipate the possibility of negligence on the part of others, i.e. it may be negligence for the trucker to presume that all drivers near him will behave non-negligently, and that these others will not speed, signal properly, etc.

If D has a higher degree of knowledge, skill or experience than the "reasonable person," D must use that higher level. 

Ex.: Trucker, a local resident, knows that a stretch of highway is exceptionally curvy and thus dangerous.  Trucker drives at a rate of speed that one who did not know the terrain well would think was reasonable, and crashes, injuring motorist, P.  Even though trucker’s driving would not have represented carelessness if done by a reasonable person with ordinary knowledge of the road, Trucker was responsible for using his special knowledge and is negligent for not doing so.

Professionals, including doctors, lawyers, accountants, engineers, professional drivers etc., must act with the level of skill and learning commonly possessed by members of the profession in good standing.  The professional will not normally be held to guarantee that a successful result will occur, only that she will use the requisite minimum skill and competence.  Minimally qualified member: It is not enough for P to prove that D performed with less skill than the average member of the profession. D must be shown to have lacked the skill level of the minimally qualified member in good standing.  One who is just beginning the practice of his special profession is held to the same level of competence as a member of the profession generally. 

Ex.: A truck driver who has just obtained his commercial drivers license, does not get the benefit of a lower standard – he must perform at the level of minimally competent truck drivers generally, not novices.

STATUTE OF LIMITATIONS

If the injured party does not discover his injury until long after Defendant’s negligent act occurred, the statute of limitations may start to run at the time of the negligent act, or may instead not start to run until P discovered (or ought to have discovered) the injury.  The period of time for a statute of limitations varies depending on the state. 

PERSONAL INJURY DAMAGES

1.     Actual injury is required:

In any action based on negligence, there must be an actual injury suffered.  Normally, a plaintiff must show that they suffered some kind of physical harm.  Recovery will not be allowed where only mental harm, and no physical harm was suffered. 

2.     Elements of damages:

Once physical harm has been proven, Plaintiff may recover a variety of damages.  These include:

a.      Direct loss: The value of any direct loss of bodily functions.

Ex.: Actual monetary compensation for the loss of a leg.

b.     Economic loss: Out-of-pocket losses stemming from the injury.

Ex.s: Medical expenses, lost earnings

c.      Pain and suffering: Damages for pain and suffering caused as a result of the injury.

d.     Hedonistic damages: Damages for loss of the ability to enjoy one’s prior life.

Ex.: Compensation for loss of the ability to walk, even if loss of that ability has no economic consequences.

·        Consciousness required: Courts are split about whether Plaintiff must be conscious of the loss in order to be able to recover damages.  Some states (e.g., New York) do not allow hedonistic damages where Plaintiff is in a coma.

e.      Future damages: Plaintiff brings only one action for a particular accident, and recovers in that action not only for past damages, but also for likely future damages.

·        Present value: When Plaintiff is recovering future values, courts generally instruct the jury to award Plaintiff only the "present value" of these losses.

f.       Periodic payments: Some states now allow Defendant to force Plaintiff to accept periodic payments in certain situations. These payments generally terminate upon Plaintiff’s death

Ex.: In New York medical malpractice cases, where the judgment is for more than $250,000, Defendant may pay the judgment by purchasing an annuity for Plaintiff, which will terminate on Plaintiff’s death.

*Note: Any recovery or settlement for personal injuries is free of federal income tax.

3.     The collateral source rule

a.      At common law, Plaintiff is entitled to recover out-of-pocket expenses, even if Plaintiff was reimbursed for these losses by some third party.

Ex.: Plaintiff has hospital bills of $100,000.  A health insurance policy owned by Plaintiff pays every dime of this.  When Plaintiff sues Defendant, and establishes liability, Plaintiff may recover the whole $100,000 even though in a sense she has collected twice.

b.     Statutory modifications: Nearly half the states have modified the common law collateral source rule in one way or another.

c.      Subrogation: Where the common law rule remains in effect, Plaintiff may not get a windfall.  An insurance company that makes payments to Plaintiff will normally be subrogated to Plaintiff’s tort rights.  The insurance company, not Plaintiff, will actually collect any judgment from Defendant up to the amount of the payments made by the insurer.

d.     Mitigation: Plaintiff cannot recover for any harm that by exercise of reasonable care, he could have avoided.  In particular, Plaintiff cannot recover for any harm that would have been avoided had Plaintiff sought adequate medical care.

1.     Seat belt defense: In some states, failure to use a seat belt may deprive Plaintiff of recovery under the duty to mitigate if Defendant can show that Plaintiff would not have been seriously injured had Plaintiff worn a seat belt.

PUNITIVE DAMAGES

Punitive damages can be awarded to penalize a defendant whose conduct is particularly outrageous.  In cases of negligence (as opposed to intentional torts), punitive damages are usually awarded only where the Defendant’s conduct was "reckless" or "willful and wanton."  Punitive damages are also frequently awarded in product liability suits, if Plaintiff shows that Defendant knew its product was defective, or recklessly disregarded the risk of a defect.

In a product liability context, a defendant who has made many copies of a defective product (such as faulty truck tires) may face multiple suits, each awarding punitive damages.  The possibility of multiple awards by itself generally does not mean that such awards should not be made.  Many courts take into account the possibility of multiple awards in fixing the amount of punitive damages in each case.

RECOVERY BY SPOUSE OR CHILDREN

Most states allow the spouse of an injured person to bring an independent action for his or her own injuries.

Ex.: A spouse of the injured person may recover for loss of companionship or loss of sex.

Similarly, nearly all jurisdictions allow a parent to recover medical expenses incurred due to injury to the child.  There may also be an action for loss of companionship (e.g., the child is in a coma).  Some courts allow a child to recover for loss of companionship or guidance where the parent is injured.  In such third-party actions, generally any defense which could have been asserted in a suit brought by the injured party may be asserted against the plaintiff. 

Ex.: In a suit by Husband for loss of companionship and sex due to injuries to Wife, D may assert that Wife was contributory negligent.

Furthermore, defenses may be asserted against the plaintiff even though these could not have been asserted in a suit brought by the victim.

Ex.: Husband drives and collides with D; Wife is injured. If Husband sues for loss of companionship, D can raise Husband’s contributory negligence as a defense, even though this would not be a defense in a suit brought by Wife.

IMMUNITIES

The common law recognizes two immunities in the family relationship:

(1)  Husband and wife: At common law, inter-spousal immunity prevented suits by one spouse against the other for personal injury.

Ex.: If Wife is injured while a passenger in a truck driven negligently by Husband, Wife cannot sue Husband.

·        Abolition: Over half the states have completely abolished the inter-spousal immunity, even for personal injury suits.  Other states have partially abolished it.

(2)  Parent and child: At common law, there is an immunity that bars suit by a child against his parents or vice versa.  Many states have abolished this immunity, and others have limited it.

Governmental immunity:

At common law, there is "sovereign immunity," preventing anyone from suing the government.  Suits against the federal government are generally allowed today, under the Federal Tort Claims Act (FTCA).  However, no liability may be based upon the government’s exercise of a discretionary or policy-making function, even if the discretion is abused.

State governments have traditionally had similar sovereign immunity, but many have abolished that immunity.  Similarly, local government units (cities, school districts, public hospitals, etc.) have traditionally had sovereign immunity as well.  Even at common law, where a local government unit performs a "proprietary" function, there is no immunity.  Proprietary functions are ones that have not been historically performed by government, and which are often engaged in by private corporations.

Ex.s: The running of hospitals, utilities, airports, etc., is generally proprietary, since these are revenue-producing activities; they can therefore be the subject of suit for personal injuries.  Police departments, fire departments and school systems are not proprietary, and cannot be sued at common law.

EMPLOYER-EMPLOYEE RELATIONSHIP

If an employee commits a tort during the "scope of his employment," his employer will be liable jointly with the employee.  This is the rule of "respondeat superior."  This doctrine applies to all torts, including intentional ones and those in which strict liability exists, provided that the tort occurred during the scope of the employee’s employment.  Most cases of respondeat superior liability involve independent contractors.  These must be distinguished for regular employees. 

The distinction is that an employee is one who works subject to the close control of the person who has hired him.  Alternatively, an independent contractor, is not subject to the close control of the person doing the hiring.  The "control" required to make a person an employee rather than an independent contractor is usually held to be control over the physical details of the work, not just the general manner in which the work is turned out.

Ex.: A "newspaper boy" is likely to be an independent contractor, not an employee, because the newspaper usually controls only the general terms of employment such as the time by which the deliveries must take place and not the physical details, such as whether the work should be done by bike or automobile.

Respondeat superior applies only if the employee was acting "within the scope of his employment" when the tort occurred.  The tort is within the scope of employment if the tortfeasor was acting with an intent to further his employer’s business purpose, even if the means he chose were indirect, unwise or even forbidden.

Most courts hold that where an accident occurs where the employee is traveling from home to work, they are not acting within the scope of their employment.  If the employee is returning home after business, courts are divided.  Even a detour or side-trip for personal purposes by an employee may be found within the scope of employment if the deviation was "reasonably foreseeable." 

Ex.: While Defendant, a salesperson, is taking a two-hour trip to visit a business prospect, she makes a five-minute detour to buy a pack of cigarettes.  If an accident occurred during the detour, this would probably be held to be "within the scope of employment," so that Defendant’s employer would be liable.  But a two-hour detour for personal business while on a one-day trip would probably not be within the scope of employment.

Even if the act done was expressly forbidden by the employer, it will be "within the scope of employment" if done in furtherance of the employment. 

Ex.: Defendant, the owner of a trucking company, expressly orders his driver never to load cargo in a particular manner.  The driver ignores this rule and loads the cargo, the cargo comes loose causing an accident in which Plaintiff is hurt.  D will be liable because the loading, though forbidden, was done in furtherance of the employer’s business purposes, i.e., the transportation of the cargo.

There are some important exceptions to the rule that an employer is not liable for the torts of his independent contractor.  First, if the employer is negligent in there own dealings with the independent contractor, this can give rise to employer liability. 

Ex.: Defendant knows that the work to be done is hazardous if not done with special precautions.  He chooses a contractor, X, who he should know will probably not do the work safely.  X, performing the work negligently, injures Plaintiff.  Defendant is liable for the consequences, because of his own negligence in selecting X.

Second, there are some duties of care that are deemed so important that the person doing them will not be allowed to delegate them to anyone. 

Ex.: A city cannot delegate its duty to keep its streets in good repair; a business owner cannot delegate his duty to keep the premises safe for business visitors; a truck driver cannot delegate the duty to keep his brakes in good working order.

Finally, one who employs an independent contractor will also be liable where the work is such that, unless special precautions are taken, there will be a high degree of danger to others.  This special rule of vicarious liability applies only to "peculiar risks," i.e., risks differing from commonly-encountered risks.

Ex.: Defendant, a city, hires X, an independent contractor, to dig a sewer in the street.  X leaves the trench unguarded without warning lights at night.  Defendant will be liable to Plaintiff, who drives his truck into the trench.  Defendant knew or should have known that the work being done posed peculiar risks to motorists.

JOINT ENTERPRISE

A joint enterprise is like a partnership, except that it is for a short and specific purpose (e.g., a trip).  The doctrine is used often in truck accident cases.  The negligence of the driver is imputed to the passenger (either to allow the occupant of a second car to recover against the passenger, or to prevent the passenger from recovering against the negligent driver of the other truck under the doctrine of imputed contributory negligence).

There are four requirements for a joint enterprise:

1.     An agreement, express or implied, between the members;

2.     A common purpose to be carried out by the members;

3.     A common pecuniary interest in that purpose;

4.     An equal right to a voice in the enterprise, i.e., an equal right of control.

The family purpose doctrine provides that a truck owner who lets members of their household drive the truck for their own personal use has done so in order to further a "family purpose," and is, therefore, vicariously liable.  This doctrine is probably now accepted by less than half of American courts.

Ex.: Father lets son use his truck.  Son negligently smashes into Plaintiff.  In a state adopting the family purpose doctrine, Father will be vicariously liable for son’s negligence.

AUTO CONSENT STATUTES

Many, states have enacted "automobile consent statutes," which provide that the owner of a car is vicariously liable for any negligence committed by one using the car with the owner’s permission.  If the use by the borrower goes clearly beyond the scope of that consent, there is no liability. 

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